Diya Sen Gupta

Diya specialises in employment litigation in the High Court and Employment Tribunal and the appellate courts, acting for both employees (including lawyers, traders and inter-dealer brokers) and employers (including hedge funds, investment banks and international law firms).

Diya frequently acts in High Court claims which involve restrictive covenants, confidential information, fiduciary duties and applications for injunctive relief, including employee competition and team move cases.

Diya has substantial experience acting in complex and high value discrimination and whistleblowing cases before the Employment Tribunal.

She also advises on equality issues arising in the field of public law.

Diya represents clients at mediation (both private and judicial).

High Court

Claims involving applications for injunctive relief:

• BGC v Johnson & Others (2010)
  Defending brokers in a team move claim including claims for injunctive relief and a springboard injunction (with Tom Croxford). Listed for expedited trial.
• E v F, G, H & I (2010)
  Represented a food testing company in its claim for injunctive relief and a springboard injunction in a team move case (with Tom Croxford). Settled before expedited trial.
• H v C, D & F (2010)
  Acted for the claimant recruitment business in its claim arising from misuse of confidential information.
• X v Y (2010)
  Defended claims of misuse of confidential information.
• U v V & W (2010)
  Represented claimant in unlawful competition claim.

Advisory

• C v D (2010)
  Advised the Chief Financial Officer of an engineering company in her claim for unpaid salary, bonus and equity.
• A v B (2010)
  Advised a major software supplier in its dispute with its former Chief Executive Officer involving allegations of breach of fiduciary duties and (with Tom Croxford).
  Advised a banker considering participation in a team move (2010).

Employment Tribunal

Employers

• Drury v (1) Royal Bank of Scotland plc & (2) RBS Pension Trustee Ltd (2010)
  Defending the Bank from claims of equal pay and age discrimination arising from non-aggregation of two periods of pension membership. Part-heard.
• H v A Bank (2010)
  Defending the Bank from a claim of race and religious discrimination by a current employee. 12 day trial listed for 2011.
• G v A Bank (2010)
  Defending the Bank from a claim of race and religious discrimination and unfair dismissal. 12 day trial listed for 2011.
• A  v B (2010)
  Representing a well known food business in its defence of a sex discrimination and constructive dismissal claim by its former in-house solicitor arising out of her flexible working request. 5 day trial listed for 2011.
• C v D (2010)
  Defending a consultancy company from a disability discrimination and unfair dismissal claim by its former Managing Director.
• Ellerbeck v Logoplaste UK Ltd (2010)
  Successfully defended unfair dismissal claim on the basis of territorial jurisdiction.

Employees

• X v Y (2010)
  Representing the claimant in his claim against a French Bank involving allegations of race discrimination arising from him being the only non-French member of the team and the only one to have been dismissed on grounds of redundancy. 2 week trial listed for 2011.
• M v N plc (2010)
  Representing the claimant in her discrimination claim against her employer, a major supermarket, involving allegations of non-promotion on grounds of sex and race. 3 week trial listed for 2011.
• W v X (2010)
  Advising a former solicitor at a US law firm about her claims for constructive dismissal, sex discrimination and harassment following the refusal of her request for flexible working.

Appeals

• Savage v SITA (2010)
  Represented the respondent to this appeal which involved consideration of (the meaning of “one establishment” in s. 188 TUL(C)RA (collective consultation and protective awards).
• Edwards v Swindon Borough Council (2010)
  Successfully represented the Appellant employee at rule 3(10) hearing of appeal regarding the (burden of proof in a race discrimination claim).
• Adamson v Swansea University (2009)
  Successfully represented the the Appellant employee at rule 3(10) hearing in an appeal concerning allegations of bias.
• Lyle v Bury Metro Racial Equality Council [2008] All ER (D) 182
  Represented the Respondent employer in appeal arising from disability discrimination claim and involving issue estoppel.
• Khan v Heywood & Middleton Primary Care Trust [2007] ICR 24 CA
  Represented the Appellant employee in this appeal which concerned the issue (whether a claim which has been withdrawn but not dismissed can be revived).

Employment Tribunal

• A v B (2009-2010)
  Represented a Bank (with Paul Goulding QC) defending a whistleblowing claim by its former Compliance and Money Laundering Reporting Officer. 4 week trial listed for 2010. Settled at private mediation.
• C v D (2010)
  Advised a hedge fund facing a disability discrimination and bonus claim. Settled.
• Evans v F (2010)
  Represented the Respondent defending a disability-related discrimination claim, involving the application of Malcolm (HL). Settled.
• G v H (2010)
  Represented an investment bank (with Paul Goulding QC) defending a high value claim alleging sexual orientation discrimination, victimisation and unfair dismissal. PHR on the issue of admissibility of “without prejudice” negotiations, including consideration of Mezzotero (EAT). Listed for 2 week trial. Settled at private mediation.
• I v J (2010)
  Represented a Claimant trader (with James Laddie) at the 9-week trial of his disability discrimination claim against his current employers, an investment bank. Settled.
• Gago v (1) BAE Systems Plc (2) Nash (2009-2010)
  Successfully represented the First Respondent, a well known multinational defence, security and aerospace company, at 6 day ET trial of claim involving allegations of sexual harassment, victimisation and whistleblowing detriments.
• X v Y (2010)
  Represented an international law firm (with Paul Goulding QC) defending a high value sex discrimination claim by a senior associate who claimed she should have been made a Partner. Settled before 6 week trial.
• Barrett v Z (2009-2010)
  Represented a major publisher defending a pregnancy discrimination claim following a redundancy process. The claim for damages included pension loss calculated on the substantial loss approach. Listed for 7 day trial in 2010. Settled.
• Morris v N (2010)
  Successfully applied for strike out of the claimant’s sexual orientation discrimination claim and obtained a deposit order in respect of her constructive dismissal claim.
• A v B (2009)
  Represented a well-known London Hotel facing allegations of sexual harassment. Settled.
• Aslam v X Finance Corporation Ltd (2009)
  Represented the Respondent independent brokerage firm defending allegations of discrimination (race, sex and age) and victimisation at 10 day trial. Settled.
• A v X
  Represented the Claimant, a former Partner in a private equity firm, in her high value sex, pregnancy and maternity discrimination claim listed for 4-week trial in 2009 (with Martin Griffiths QC). Settled.
• Beg v Y (2008-9)
  Represented a leading insurance company defending a race discrimination claim (including allegations of indirect discrimination and harassment) which was listed for 10 day Hearing in 2009). Settled.
• Vidal v Z (2008)
  Successfully defended a couple from claims of unfair dismissal, sex discrimination (pregnancy and marital status) and race discrimination by their former nanny.
• Staph v Accenture Services Ltd (2008)
  Defended a complex race discrimination claim about allegations of non-promotion at a 2-week trial.
• Pillans v A (2008)
  Represented a leading Canadian law firm defending a whistleblowing claim by its former employment counsel. Settled before 2-week trial.
• B v X Investment Company Ltd (2008)
  Represented a Korean Bank defending a high value race discrimination claim by a current employee. Settled on 1st day of 8 day trial.
• Jackman v ZyLAB UK & Others (2008)
  Successfully defended the Respondent software company from a claim of disability discrimination involving complex consideration of medical evidence relating to depression.
• S v X (2007)
  Represented the City Bank defending a £1m bonus claim and allegations of race discrimination and unfair dismissal. Settled before 4-week trial.
• Kinghorn v Barclays Bank Plc (2006)
  Successfully defended Barclays Bank from a current employee's allegations of race discrimination and harassment.

High Court

• R v Secretary of State for Business Innovation and Skill ex parte Age UK [2010] I.C.R. 260 (with Lord Lester of Herne Hill QC)
  Represented the Equality and Human Rights Commission as intervenor in the landmark age discrimination judicial review case commonly referred to as “Heyday” which challenged the default retirement age of 65 as being unlawful under EU law.
• X v Y & Z (2009-2010)
  Represented the First Defendant to a wrongful dismissal claim.
• A v B (2009-2010)
  Represented the Defendant former employee to a breach of contract claim.
• C v D (2009)
  Represented a recruitment agency whose former employee had set up a competing business in breach of restrictive covenants.
• E v F (2009)
  Represented a ticketing agency whose former employee joined a competitor in breach of restrictive covenants.
• G v H (2009)
  Represented a defendant former employee facing a claim for damages for breach of contract, breach of confidence and breach of fiduciary duties, including an application for an interim injunction, by his former employer.
• I v J (2009)
  Represented a metals company whose former employee joined a competitor in breach of restrictive covenants.
• McLaren v B Elliott Group Ltd [2005] All ER (D) 54, High Court (QBD)
  Instructed to represent the Respondent at a 3 day High Court trial in a claim arising out of a termination agreement and involving issues of construction, anticipatory breach and affirmation.
• Cornell v Swiss Bank Corporation (part of the UBS Group)
  Instructed to represent the Bank at various hearings 2004-7, in a matter arising out of a stress at work claim, and involving issues of limitation and mental capacity.
  Advised potential claimant in respect of alterations in his redundancy terms following transfer of his employment from a large bank (May 2005).

Industrial Action

• Advised a major car manufacturer on threatened industrial action and a large-scale redundancy exercises (with Paul Goulding QC). 

Disciplinary & Grievance Investigations

Diya has "developed a niche in conducting disciplinary and grievance investigations" - Chambers & Partners 2008.

In 2005-6, Diya was instructed by a local education authority to conduct a complex disciplinary investigation into serious allegations made by pupils against teachers and care staff at a residential school. Diya set out her findings in a 200-page report for the local authority.

Diya has been instructed to conduct a number of sensitive grievance investigations for various organisations, including a leading financial services company, in a wide variety of matters including allegations of age discrimination, race discrimination, bullying and harassment.

Diya has been involved in a number of high profile judicial review challenges.

• R v Special Commissioner of Income Tax ex parte Prudential Plc and Prudential (Gibraltar) Ltd [2010] EWCA Civ 1094; and R v Special Commissioner of Income Tax ex parte Prudential Plc and Prudential (Gibraltar) Ltd [2010] STC 161
  Successfully represented HMRC (with Leading Counsel) before the High Court and the Court of Appeal in defending Prudential’s claim to extend legal professional privilege to cover accountants’ advice on tax law. Prudential has now sought permission to appeal to the Supreme Court. 
• R v Secretary of State for Business Innovation and Skill ex parte Age UK [2010] I.C.R. 260 (with Lord Lester of Herne Hill QC)
  Represented the Equality and Human Rights Commission as intervenor in the landmark age discrimination judicial review case commonly referred to as “Heyday” which challenged the default retirement age of 65 as being unlawful under EU law.
• R v Special Commissioner of Inland Revenue ex parte Morgan Grenfell & Co Ltd [2003] 1 AC 563, HL (s 20 Taxes Management Act 1970 investigation powers, legal professional privilege, human rights).
  RP (Zimbabwe) & RP (Zimbabwe) v SSHD [2008] EWCA Civ 825 (immigration)
• R v SSHD ex parte Abo-Julledah [2007] EWHC 2910 (Admin) (immigration)

Diya is frequently instructed to advise on matters involving injunctive relief.  Reported cases include:

• Banco Nacional De Commercio Exterior SNC v Empressa de Telecommunicaciones de Cuba SA [2007] EWCA Civ 662
  Successfully represented British Telecommunications (with leading counsel) in this matter, involving freezing injunctions and the undertaking regarding third party losses, before the Court of Appeal and at a hearing before the House of Lords at which HL made a reference to the ECJ. This matter subsequently settled. 

Publications

• Contributor to forthcoming 2nd edition of Tolley’s Discrimination in Employment Handbook
• Paper on Forum for Contractual Claims (ELA High Court Litigation Conference February 2010)
• Contributor to forthcoming 2nd edition of Employee Competition
• Contributor to Jordans Employment Law
• Contributor to Butterworths Employment Law Guide (4th Edition, 2007)
• Co-Author of Tolley’s Equal Pay Handbook (July 2006)
• Various articles in the New Law Journal

Other Information:

VAT registration number:  782941104