McIlveen on Employment- March 2022


Working hard for something we don’t care about is called stress: Working hard for something we love is called passion.
Simon Sinek


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Law by Design v Ali [2022] EWHC 426 (QB)
This month the High Court in England decided that a non-compete restrictive covenant in a service agreement could prevent a solicitor from joining a competitor. (Read the full judgment here).

The Claimant began working for Law by Design in 2013, becoming a shareholder in 2016. She entered into separate shareholder and service agreements, both of which contained restrictive covenants.

A non-compete clause in the service agreement prohibited her from being involved in any business which was in competition with the parts of the firm with which she had been involved for a period of 12 months following departure. The shareholder agreement was somewhat wider in its terminology and prevented her from being engaged in any business that competed both directly and indirectly with a business of the company in the territory that the business had operated in within the last year. In practice, this would have prevented the Claimant from working anywhere in England and Wales for a 12 month period following her departure.

The claimant refused to accept an undertaking regarding these clauses when she left the respondent in May 2021. In reaching its decision the High Court applied the four-stage test set out in TFS Derivatives Ltd v Morgan [2004] EWHC 3181 (QB).

1. The court must decide what the covenant means when properly construed.
2. The court will consider whether the former employers have shown on the evidence that they have legitimate business interests requiring protection in relation to the employee’s employment.
3. Once the existence of legitimate protectable interests has been established, the covenant must be shown to be no wider than is reasonably necessary for the protection of those interests.
4. Even if the covenant is held to be reasonable, the court will then finally decide whether, as a matter of discretion, whether the injunctive relief sought should in all the circumstances be granted, having regard, amongst other things, to its reasonableness as at the time of trial

In considering the test the court found that the shareholder agreement was wider than what was reasonably necessary to protect legitimate business interests and could not be enforced. The service agreement was however deemed enforceable as it was held to be drawn no wider than was reasonably necessary.


Click on the case names to view the full judgments.

Quelch v Courtiers Support Services – The claimant refused to return to work due to concerns about putting his clinically vulnerable partner at rik.

Best v Embark on Raw Ltd – One of the first successful whistleblowing claims based on COVID-19 related protected disclosure.

Allette v Scarsdale Grange Nursing Home Limited Case concerning dismissal following refusal to be vaccinated. 

Preen v Cooling Ltd and Mullins Claimant was dismissed for “redundancy” when he refused to come to work shortly after Boris Johnson’s first announcement to stay at home in March 2020.

Rodgers v Leeds Laser Cutting Ltd Unfair dismissal of employee expressing concerns regardng the risk of infecting his vulnerable children should he contract Covid-19 at work.

Khatun v Winn Solicitors Ltd The tribunal found that a solicitor who refused to agree to changes to her employment contract had been unfairly dismissed

Montanaro v Lansafe Ltd Claimant unfairly dismissed when continuing to work remotely in Italy when trapped there at the start of the pandemic.

Accattatis v Fortuna Group (London) Ltd  Unsuccessful attempt by the claimant for wrongful dismissal when his role was deemed unsuitable for remote working.

Gibson v Lothian Leisure Claimant was unfairly selected for redundancy because he took steps to protect his father in circumstances he reasonably believed to be of serious and imminent danger.
Kubilius v Kent Foods Limited Unsuccessful unfair dismissal claim for failure to wear a face mask contrary to worksite rules.

X v Y Fear of contracting Covid did not meet the criteria for a philosophical belief

Prosser v Community Gateway Association Limited Neither the claimant being sent home nor delaying her return until appropriate Covid-secure measures were in place was unfavourable treatment.  These were positive steps to protect her. 



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Lecture by Moira Smyth QC – Women in the Law

The Bar of NI  has committed itself to its diversity programme and is implementing a range of new initiatives. These initiatives include:
  • The installation of a breastfeeding suite which has Ms Smyth stated has been “warmly welcomed by working mothers.”
  • The establishment of a series of targeted events across the legal profession to facilitate networking for those returning to work from maternity leave.
  • The instigation of the maternity mentoring programme to augment the existing and very successful general mentoring programmes at the bar.
  • A Further review of the financial support that the bar library can give to working mothers.
  • Developing a revised bullying and harassment policy which will help to address established, and sometimes unconscious, power imbalances, including gender related imbalances that have been raised by female counsel in the past.
  • Annual monitoring and surveying of members who have left the profession to gather data on their reasons for doing so.
Future initiatives under discussion were noted as follows:
  • The Bar Diversity and equality committee is actively looking at an innovative way forward, including the potential for in-house sexual harassment workshops.
  • How mechanisms could be implemented to alleviate stressors for barristers during maternity and paternity leave.
  • The potential for the bar  to have a Fair Instructions Policy akin to the faculty of advocates in Scotland recognising that advocates should be instructed on skill, experience, and ability.
  • The consideration of a form of the more radical equal briefing policy model which originated in New Zealand and has had a very successful take-up in New Zealand and Australia.
  • Such policies seek a written commitment from solicitors and corporate bodies to brief women equally with men within set timescales with published statistics and modest pre-set goals.   
For a full recording of Ms Smyth’s lecture cut and paste the following into your browser:


This month, I recorded my first podcast with Sarah Henry from the Activist Lawyer. We discussed breastfeeding, the challenges of navigating motherhood alongside practice & new working practices arising out of covid-19. 

m. 07752 370149   
Bar of NI Profile
The Bar Library, 91 Chichester Street, Belfast, BT1 3JQ, Northern Ireland

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