Nicola undertakes work for both Claimants and Respondents and covers all areas of employment law, including unfair dismissal, all areas of discrimination, whistleblowing and TUPE. She has appeared in both individual and collective disputes. She has appeared before the Court of Appeal on a number of occasions, as well as appearing regularly before the Employment Tribunals, the Employment Appeal Tribunal and in the High Court. She regularly advises individuals, trades unions and employers.
Nicola is ranked in both Chambers & Partners and The Legal 500 for employment. Commentary in the directories includes:
“She offers superior intellectual ability and attention to detail. She’s lovely to work with and good on her feet.”
“Exceptionally bright barrister, who is forensic in reviewing and understanding the matter at hand.”
Unfair Dismissal, Discrimination & Whistleblowing
Her work for individual claimants and for respondents has included a significant number of multi-day discrimination cases, including sex, race, age, pregnancy and disability discrimination, as well as whistleblowing claims. She has a particular interest in transgender / gender reassignment discrimination. Together with Robin White she regularly provides training regarding transgender issues, especially with regards to the Gender Recognition Act 2004, as well as having significant experience of advising NHS Trusts and other employers with regard to this constantly developing area of the law.
Her recent cases of interest include:
- East London NHS Foundation Trust v O’Connor  IRLR 16 – Nicola represented the Trust in this appeal concerning the relationship between “Agenda for Change” (incorporated into all NHS contracts of employment) and the statutory provisions relating to redundancy payments;
- Anderson v Turning Point Eespro  EWCA Civ 815 |  ICR 1362  IRLR 731– led by Mary O’Rourke QC, Nicola successfully represented the employer in this leading case concerning what steps need to be undertaken to ensure procedural fairness before the Tribunal;
- Gutfreund-Walmsley v Big Lottery Fund Ltd– Nicola successfully represented the employee in her claim for victimisation for having spoken out as part of the #MeToo campaign;
- Tarn v Hughes  ICR 76,  IRLR 1021– Nicola successfully represented Dr Tarn in her appeal against the decision of an Employment Tribunal limiting the number of discrimination claims she could bring at any one hearing;
- Dr Carneiro v Chelsea Football Club and Jose Mourinho– Nicola was junior counsel to Mary O’Rourke QC, representing Dr Eva Caneiro in her claims for unfair dismissal and sex discrimination. The claim was settled on confidential terms on day 2 of the ET hearing. (Press coverage);
- William Jones’s Schools Foundation Trustees v Parry– Nicola successfully represented Ms Parry before the EAT, where the EAT found that the provisions relied upon by Respondent were ultra vires the enabling legislation and before the Court of Appeal where the Court of Appeal accepted that the ET1 had in fact been in a form that could reasonably have been responded to meaning that the vires of the legislation no longer mattered;
- Bhardwaj v FDA (CA)– Nicola was junior counsel for Ms Bhardwaj (led by Mary O’Rourke QC) before the Court of Appeal in a case considering the circumstances in which there may be found to be apparent bias by the ET and the requirements for there to be a valid waiver of bias;
- Gribble v Ministry of Justice– Nicola represented a part-time judge in the Social Security and Child Support Tribunal who was claiming less favourable treatment on grounds of being a part-time worker;
- Newcastle v. Ford and Khan UKEAT/0358/13/MC (EAT) – Nicola successfully represented Mr Khan before the EAT, resisting Newcastle Council’s appeal against the finding that Mr Khan had been unfairly dismissed. The EAT accepted that there had been no procedural error by the ET and that the ET had not substituted its view for that of the employer.
Collective Disputes including TUPE
Her collective work has included acting for groups of Claimants in respect of failures to consult in accordance with Section 188 TULCRA, a test case for a group of Claimants in respect of the impact of a pre-TUPE transfer collective agreement, a multi-Claimant age discrimination case, two workforces in respect of their post TUPE transfer dismissals and numerous multi-claimant claims relating to contractual entitlements to wages and/or enhanced redundancy payments, often including TUPE-related issues. She is also involved in the holiday pay litigation.
Her recent and upcoming cases of interest include:
- Peacock v. Peregrine & Ors UKEAT/0315/13/SM (EAT)– Nicola successfully represented the employees before the EAT in resisting the employer’s appeal against a decision that they had been entitled to enhanced redundancy payments by virtue of a tern inferred by custom and practice;
- CSC v. McAlinden & Ors  EWCA Civ 1435 (CA)– Nicola successfully represented the Claimant employees before the Employment Tribunal, the Employment Appeal Tribunal and the Court of Appeal in their claims that they had become contractually entitled to an annual pay increase in line with RPI. Nicola was sole counsel for the ET and EAT and was led by Oliver Segal QC in the Court of Appeal;
- TSSA & Ors v. Network Rail– Nicola was instructed as sole counsel in respect of TSSA’s claim against Network Rail for its failure to consult in accordance of Section 188 TULRCA 1992 when undertaking a large-scale reorganisation of its information management department. She was individual claimants in respect of their individual claims for unfair dismissal arising out of the same reorganisation;
- Boxall & Ors v. Innserve – Nicola represented two separate workforces in respect of their claims for automatic unfair dismissal under Regulation 7 TUPE.
High Court Medical Disciplinary Cases
Nicola’s recent High Court and Court of Appeal doctor and dentist cases include:
- Smo v Hywel Dda University Health Board  EWHC 727 (QB)– led by Giles Powell, Nicola appeared for the Helath Board in this case, which was the first to consider the scope and application of “Upholding Professional Standards in Wales”, which impacts upon the contracts of employment of all hospital consultants in Wales;
- Jain v Manchester University NHS Foundation Trust  EWHC 3016,  165 BMLR 175– led by Jeremy Hyam QC, Nicola appeared for the doctor in this case concerning the application of MHPS to working relationships enquiries in foundation hospitals;
- McMillan v Airedale  EWCA Civ 1031,  IRLR 803 (CA)– Nicola was junior counsel (led by Mary O’Rourke QC) for Miss McMillan before the Court of Appeal, in which Miss McMillan successfully resisted the Trust’s appeal against the finding that the Trust would be acting in breach of Miss McMillan’s contract of employment if it sought to increase on an internal appeal a sanction of final written warning to one of dismissal. The case is of widespread importance for all employers and employees where there is no express contractual right to increase sanction on appeal;
- Powys Teaching Local Health Board v Dr Piotr Dusza, Dr Hako Sobhani  EWCA Civ 15– Nicola appeared in the Court of Appeal (led by Mary O’Rourke QC) for the two dentists where they successfully resisted the health board’s appeal against the finding that payment should be on a work done basis. The case concerned the interpretation of the dental contract and related regulations that apply to all dentists in Wales who undertake NHS work. Similar contracts and regulations apply to dentists undertaking NHS work in England;
- Dr Chakrabarty v Ipswich Hospital NHS Trust (with NCAS intervening)  EWHC 2735;  Med LR 379– Nicola was junior counsel for the Trust (led by Giles Powell) in this case concerning the relationship between internal trust proceedings and proceedings before the GMC / Medical Practitioners Tribunal Service and also the role of NCAS in internal disciplinary proceedings under the Maintaining High Professional Standards framework agreement (MHPS);
- Dr Mattu v University Hospitals of Coventry and Warwickshire NHS  EWCA Civ 641;  4 All ER 359;  ICR 270;  IRLR 661– Nicola was junior counsel for Dr Mattu (led by John Hendy QC and Giles Powell). The case concerned the ability of the Trust to proceed to a disciplinary hearing in the absence of Dr Mattu, the characterisation of the charges against Dr Mattu as involving professional or personal conduct (the former attracting greater protection under Dr Mattu’s contract of employment) and the application of Article 6 ECHR to the disciplinary proceedings.
- A v HTX  EWHC 857 (QB)– Nicola was junior counsel (led by Giles Powell) for Health Trust X in its successful resistance of an application for a final injunction by Dr A who was seeking to prevent the trust from referring her to an ill health panel.
- R (on the application of Puri) v. Bradford Teaching Hospitals NHS Foundation Trust  EWHC 970 (Admin),  IRLR 582– Nicola was junior counsel (led by Giles Powell) for Mr Puri in his application for judicial review of the decision to dismiss him using a disciplinary panel consisting mainly of employees of the Trust and to permit his appeal panel to be similarly constituted. The case concerned the application of Article 6 ECHR to dismissals where a person’s ability to practice their profession / professional reputation may be at stake. This case is currently being appealed to the Court of Appeal;
- Dr Hussain v. Surrey and Sussex Healthcare NHS Trust  EWHC 1670 – Nicola was junior counsel (led by Giles Powell) for Dr Hussain in her breach of contract and Article 6 claims. The High Court held that the Trust had been in breach of Dr Hussain’s contract of employment in respect of the level of her exclusion and its initial referral to a disciplinary hearing of charges that were not purely conduct charges;
- Dr Lim v. Royal Wolverhampton Hospitals NHS Trust  EWHC 2178– Nicola was junior counsel for the Trust (led by Giles Powell). The case concerned the Trust’s duty to refer Dr Lim to NCAS before commencing capability proceedings and the ability of the Trust to consider (unrelated) conduct charges.
As well as having an extensive discrimination practice in the employment sphere, Nicola regularly provides advice representation in non-employment discrimination claims, including claims relating to the provision of healthcare and other services to the public.
Recent cases of interest have included:
- R (on the application of Independent Workers’ Union of Great Britain) v Mayor of London  EWHC 1997 (Admin)  4 WLR 118, led by Ben Collins QC, Nicola appeared for the IWUGB in this groundbreaking challenge to the legitimacy of the Mayor of London’s decision to exempt “black cabs” but not mini cabs from the congestion charge. The case involved issues of human rights and indirect discrimination;
- X v Shrewsbury and Telford NHS Trust– a case concerning whether a transgender patient’s human rights had been breached and whether she had suffered discrimination in the way that health services had been provided to her.