Nabila Mallick has a wide ranging practice, as a member of chambers Employment, Immigration, International, Public Law and Regulatory groups.
Nabila acts for both Employers and Employees in employment disputes with a discrimination focus. Has been acted for FTSE 100 companies and has been instructed by multi national law firms. Has acted on behalf of trade unions in large redundancy claims involving a 100 employees. Claimant representation has been of Doctors, Nurses, Engineers, Professors, Teachers and Local Government Employees.
Nabila has represented clients at the European Court of Human Rights (ECHR), in supreme court petitions, court of appeal, High court/ EAT and Employment Tribunal. She appeared unled against a number of leading Employment silks in the higher courts.
She regularly advises on settlement agreements and drafts representation for internal hearings.
She has a keen interest in religious and disability mental health discrimination, in respect of which she has lectured, provided training and assistance in drafting policy.
Obtained the highest amount of damages in 2018 at the Employment Tribunal for a local government Employee 473,000 (reduced to 423,000 upon reconsideration).
Also obtained 293,000 for a engineer in a victimisation claim.
Also achieved a settlement of 600,000 for an Academic in an Equality Act claim
Acted for Appellant on appeal from ET of race discrimination claim. Respondent was represented by Clive Sheldon QC. The grounds challenged application of burden of proof and standing back to look at the claim. Successfully demonstrated that the ET did not stand back and examine events.
in this judgment Rimer LJ provides a comprehensive review of the facts and the reasoning in both the ET and the EAT noting that counsel for the claimant, Ms Mallick had “worked apparent magic” in the EAT by “surmounting the rarely surmountable hurdle presented by an appeal based on perversity grounds.”
In examining the test for contributory fault for reduction of basic award and compensatory award in allowing the appeal of the Appellant. President Langstaff stated ‘She has set out her argument in a detailed and careful skeleton to which we would wish to pay tribute’…there is no argument to counter those which Ms Mallick puts before us. Nonetheless we unhesitatingly think that she is right in the points which she makes.’
The EAT allowed the appeal. The claimant had asked for further investigations to be carried out, including interviewing the first till operator and his colleague, and looking at CCTV footage inside the shop. This evidence would have supported his account that he was at no time acting dishonestly. The respondent’s failure to do so was held to be objectively unreasonable and the Tribunal’s conclusion to the contrary was unsustainable. The EAT unanimously agreed that this was one of those rare cases where they should interfere with the ET’s decision on this issue.
Represented the claimant Consultant Haematologist. Ms Mallick emphasised that this was a case of a health worker who had a second job, which she could do, and indeed so far as statutory sick pay was concerned there was no basis for concluding there was any fraud. The matter was remitted for consideration of mitigating circumstances- a finding of gross misconduct does not result in unfair dismissal.
on behalf of the Claimant Miss Nabila Mallick submits that, while the Employment Judge made reference to the Selkent principles, his reasoning shows that he failed to apply them. Appeal allowed.
The Employment Appeal Tribunal concluded on balance that the content and tone of the member’s questions and comments had been as described by the Claimant and that they gave rise to an appearance of bias which meant that, notwithstanding that he had not appealed against the substantive decision, the Employment Tribunal ought to have recused themselves from hearing the costs application.
The Respondent was represented by Timothy Pitt- Payne QC. The claimant had raised several grievances and eventually took his complaints to the ET. Having gone through each of the individual allegations in some detail, the Tribunal reminded itself of the cautionary warning in Rihal v London Borough of Ealing [2004] EWCA Civ 623 of the danger of an over fragmented approach. It, therefore, stood back “to ensure that the bigger picture is exposed”. It did so “firstly in respect of the major themes of the allegations” and then “in terms of the total picture which these themes make up”. Having done so, the Tribunal saw instances of unreasonable treatment of the claimant, of delays and poor practice.
Respondent was represented by Jane Mcneil QC and and Andrew Midgley QC. The court dismissed the appeal. The Disciplinary Panel were entitled to find that the conduct amounted to gross misconduct. Whether the label of fraud or dishonesty was attached as well was immaterial.
It is common in discrimination cases for an Employment Tribunal to include within its Reasons a statement that it has stood back as a whole and considered all the primary facts in accordance with this approach. The Employment Tribunal did not include any such paragraph in its Reasons.
Ms Mallick submitted that if the ET exercised its discretion under Rule 84 to take the Appellant’s means into account (as it appears, at least, that it might have), it was bound to make findings about the Appellant’s means and, thus, about his ability to pay any costs award; and if the ET had decided, despite his not having the means to pay, that it would nonetheless make an award, it had to explain why. She relied on the decision of this Tribunal in Jilley v Birmingham and Solilull Mental Health Trust UKEAT/0584/05. I accept that submission.
The EAT allowed the appeal. When considering the protected disclosure issue, the ET stated that it could not understand the basis of the HR advice which gave rise to the question whether it might have been materially influenced by the Claimant’s protected disclosures. On the reasons provided, there was not a complete answer to that question and it was unclear whether the ET had failed to adopt the correct approach when looking at the Respondent’s explanation or whether it had failed to provide adequate reasons.
I have had the advantage of focussed submissions from Ms Mallick, who has considerable experience in this court and the courts below.
I also agree with Ms Mallick that it is well established that for conduct to justify an adjustment under section 123(6) it is necessary to identify first, what conduct is relied on as culpable or blameworthy; second, whether that conduct caused or contributed to the dismissal; and third, whether it is just and equitable to reduce the award for blameworthy conduct having regard to that finding. Considerations under section 122(2) are similar, although the discretion under this provision is wider and relates to any conduct on the employee’s part that occurred before the dismissal, whereas a reduction under section 123(6) depends on the conduct in question being shown to have caused or contributed to the dismissal.
Unfair dismissal – fairness of dismissal (Employment Rights Act 1996 (“ERA”) section 98(4)) and band of reasonable responses test – whether the ET was guilty of a substitution mindset. Contributory fault – sections 122(2) and 123(6) ERA – whether the ET adopted the correct approach, taking into account all relevant material and/or whether it gave adequate reasons to explain its conclusion.
ET could not rely on bad faith, where Respondent accepted that the claimant had made protected act complaint for the purposes of harassment.
Represented the Respondent , succeeded on the issue on appeal concerning affirmation of repudiatory breach. Remitted for rehearing on the issue.
Nabila represented multi claimants in this Tupe claim involving four Respondents at the ET. There was a preliminary hearing for four days to decide the employees assigned and the transfer date. The claimants appealed the decision on the finding that there was no transfer. Led by Melanie Plimmer from Old Square chambers, the EAT decided; Temporary cessation of activity prior to a change of contractor does not prevent the transfer of an undertaking or a service provision change (SPC). In deciding whether an SPC is excluded by the exception in regulation 3(3)(a)(ii) the question is whether the transferee’s intended involvement is in connection with a task of short-term duration. The suspension of activity shortly before a change of service provider which was the key feature of this case is by no means unusual. The judgment made it clear that such intermissions require careful analysis, because they may well form part of a chain of events which gives rise to a relevant transfer.
this decision of the ET whilst successfully resulting in 293,000 in remedy is appealed for erroneous decision on pension loss.
succeeded upon remedy to an awards of 473,000.
Nabila has extensive experience of the Immigration Tribunals. She has specialised in all aspects of Immigration work for both Private individuals and Businesses, with a particular emphasis on the implementation of Government Policy, EU freedom of movement law and European Convention of Human Rights. She was recently successful at the European Court of Human Rights , where the UK Government conceded.
She has lectured in constitutional law and has written for various publications. She is a member of a number of Human Rights organisations.
The Claimant challenged her removal to a ‘Third Safe Country’ Greece on the grounds that it would be a breach Article 8 – as she suffered psychiatric Injury in Greece and her young son also suffered psychiatric harm. The ECHR granted an Injunction against removal. The case was expedited and upon written submissions, prior to the hearing, the UK government conceded.
Imperative grounds of public security in Regulation 21(4) of the EEA should be interpreted in light of Article 28 2004/38/EC.
A failure to follow the two stages at the upper Tier in accordance to DK (Serbia).
WLR – The UT erred in overturning an appeal which was not in material error of law – Article 8 Private life to be treated in the same way as Family life.
Guidance for Deportation appeals, Tribunal must first consider liability for deportation and then whether deportation would breach Refugee convention or ECHR.
593 Permission on appeal granted all grounds- appeal dismissed – no error of law – number of offences outweighed over many years interests of children (Law of Human rights p. )
Care proceedings and Immigration proceedings are independent from one another.
Procedures to be adopted under a new regime – examination of history of statutory regime.
(The Times February 2005) (No Error of Law – legal isues not raised upon appeal. Failure to comply with Practice Directions.
Argued that the Objective Material supported Adjudicator’s findings of strip searches.
Nabila practices the following areas:
Nabila undertakes a broad range of Public Law and Human Rights challenges. She represented one of the five test cases on unlawful detention and the use of ‘secret’ Government policy in ‘Abdi and others’. She has brought challenges against Local Government Authorities, NHS Trust and Regulatory Bodies of Health Care professionals.
Nabila is passionate in representing her clients and has been involved in a number of publicised cases,
(i) Malik Madani (unlawful detention) Times 28th February 2007, (ii) A. Glanville- ‘Deportation trick ruled lawful’ BBC News and the Times 27/9/2005, (iii) M. King – ‘Judge bans asylum seeker from IVF course’, The Evening Standard 18th July 2005.
She recently obtained an injunction against the SSHD on behalf of a HE college, allowing 200 students to complete their course of study.
The Claimant challenged her removal to a ‘Third Safe Country’ Greece on the grounds that it would be a breach Article 8- as she suffered psychiatric Injury in Greece and her young son also suffered psychiatric harm. The ECHR granted an Injunction against removal. The case was expedited and upon written submissions, prior to the hearing, the UK government conceded.
15th June 2012
Kenneth Parker J granted release of FNP at an oral hearing after HH Thornton J granted permission observing that a detention of over 40 months without any prospect of deportation has succeeded what is permissible or acceptable.
This is a challenge to the SSHD’s application of policy and guidance to matters that regulate entry into the UK. The Claimant has been granted interim relief so that 200 foreign students could complete their studies.
10th February 2010
obtained interim relief against the removal of an unaccompanied minor- Birth certificate contradicted LA report. Removal challenged on the basis that SSHD had not obtained information on reception facilities in Albania, Also challenged lawfulness of detention of minor. SSHD settled JR proceedings.
21 December 2010
The main issue was entitlement of right of appeal for further representations. A sub –issue was the legal effect of further representations that invoke Article 15c of the Qualitative Directive.
Granted permission to move Judicial Review after lengthy oral hearing HH J Pearle to an application seeking to revoke the Deportation Order for drugs offence that carried a 14 year sentence on the grounds that he had a 13 children residing in the UK.
The issue was whether there was a discretion to consider an extant application made one day out of time and validity of the application, if in there was such a discretion under the prescribed forms and procedures regulations.
13th Oct 2009
(Trancript available) relying on observation of HH Blake Jin Soorgul Ahmadzai, R (on the application of ) v Secretary of State for Home Department (CO/105522/2009) –‘it would appear to be unfair for some afghans who claim Article 15 protection to be removed whilst others who have legal representations and obtain judicial orders, are not.)’ Interim relief granted by Andrew Nicols J with observations on inconsistency of treatment of Afghan’s awaiting Country Guidance.
The SSHD was challenged on the grounds of maladministration and a claim of damages was made for unnecessary wasted costs incurred by the Claimant in adjournments obtained by SSHD during the Tribunal appeal process. The SSHD settled for 3450.00 (The case was relied upon on other such challenges by Counsel).
appealed to the court of appeal. The issue was the validity of a Government policy relating to the detention of FNPs pending their deportation from the United Kingdom. Whether a ‘Secret Policy’ was lawful.
The issue concerned the lawfulness of the detention of the claimant with a view to his removal as a failed asylum seeker in circumstances where, as of that date, there was in being an outstanding application.
Each of the Claimant’s had signed voluntary return papers. The purposes of the detention is removal from the UK . The SSHD could not return the Claimants and could not say when it would be possible. HH Justice Collins declared that the detention was unlawful and ordered release of the Claimants.
The issue was whether the SSHD acted unlawfully in certifying the claim as clearly unfounded for a claim of family life between extended family members. The Claimant challenged removal on the grounds that he was dependent on extended family members.
argued right to Private Life , Burnton J refused the application to remain in the UK to have IVF Treatment. Refused on the grounds that IVF is medical treatment.
Moses J stated that a deportation trick was unlawful ie The Claimant was invited for an interview at HO and detained for removal without prior notice.
Anonymity Order in Asylum Cases – Fresh Evidence- requirements of entry.
The issue was whether the Claimant had been made an offer of suitable accommodation under the Housing Act.
Nabila undertakes a broad range of Public Law (including Immigration, community care, housing mental health and Education) and Human Rights challenges.
She has represented at all levels; ECHR, Supreme Court Petitions, Court of Appeal, High Court and the FTT.
She has represented claimants in a number of test cases. In particular she represented one of the five test cases on unlawful detention and the use of ‘secret’ Government policy in ‘Abdi and others’. She has brought challenges against Local Government Authorities, NHS Trust and Regulatory Bodies of Health Care professionals. Nabila is passionate in representing her clients against public bodies and has been involved in a number of publicised cases.
She has notably a high success rate in the obtaining interim relief in community care and children act challenges.
She has a special interest in challenges involving mental health issues, recently obtained concession after the grant of permission to unlawful detention challenges by foreign nationals who suffered from mental health impairments and therefore ‘adults at risk’.
She delivers seminars to other lawyers on various public law issues and has devised judicial review training for solicitors.
An experienced member of the Judicial Review Team, she has built a practice in community care, public and regulatory law. Apart from her working knowledge of the Education Act 1996 and Children and Families Act 2014, she has an in-depth knowledge of the Equality Act 2010 and Human Rights Act 1998.
She has a particular interest in those who claim to have been denied opportunities to achieve their full potential by the Education system, such as through a failure to meet needs of a disability.
She undertakes Judicial Review and representation before the FTT.
Nabila has a keen interest in mental health issues, which crosses over into all her areas of practice.
Permission was granted to challenge the application of family amnesty policy.
Kenneth Parker J granted release of FNP at an oral hearing after HH Thornton J granted permission observing that a detention of over 40 months without any prospect of deportation has succeeded what is permissible or acceptable.
This is a challenge to the SSHD’s application of policy and guidance to matters that regulate entry into the UK. The Claimant has been granted interim relief so that 200 foreign students could complete their studies.
obtained interim relief against the removal of an unaccompanied minor- Birth certificate contradicted LA report. Removal challenged on the basis that SSHD had not obtained information on reception facilities in Albania, Also challenged lawfulness of detention of minor. SSHD settled JR proceedings.
The main issue was entitlement of right of appeal for further representations. A sub –issue was the legal effect of further representations that invoke Article 15c of the Qualitative Directive.
Granted permission to move Judicial Review after lengthy oral hearing HH J Pearle to an application seeking to revoke the Deportation Order for drugs offence that carried a 14 year sentence on the grounds that he had a 13 children residing in the UK.
The issue was whether there was a discretion to consider an extant application made one day out of time and validity of the application, if in there was such a discretion under the prescribed forms and procedures regulations.
‘it would appear to be unfair for some Afghans who claim Article 15 protection to be removed whilst others who have legal representations and obtain judicial orders, are not.)’ Interim relief granted by Andrew Nicols J with observations on inconsistency of treatment of Afghans awaiting Country Guidance.
The SSHD was challenged on the grounds of maladministration and a claim of damages was made for unnecessary wasted costs incurred by the Claimant in adjournments obtained by SSHD during the Tribunal appeal process. The SSHD settled for 3450.00 (The case was relied upon on other such challenges by Counsel).
Represented one of the five test cases- Malik Madani appealed to the Court of Appeal. The issue was the validity of a Government policy relating to the detention of FNPs pending their deportation from the United Kingdom. Whether a ‘Secret Policy’ was lawful.
The issue concerned the lawfulness of the detention of the claimant with a view to his removal as a failed asylum seeker in circumstances where, as of that date, there was in being an outstanding application.
Each of the Claimants had signed voluntary return papers . The purposes of the detention is removal from the UK. The SSHD could not return the Claimants and could not say when it would be possible. HH Justice Collins declared that the detention was unlawful and ordered release of the Claimants.
The issue was whether the SSHD acted unlawfully in certifying the claim as clearly unfounded for a claim of family life between extended family members. The Claimant challenged removal on the grounds that he was dependent on extended family members.
Argued right to Private Life; Burnton J refused the application to remain in the UK to have IVF Treatment. Refused on the grounds that IVF is medical treatment
Moses J stated that a deportation trick was unlawful ie The Claimant was invited for an interview at HO and detained for removal without prior notice
Anonymity Order in Asylum Cases – Fresh Evidence- requirements of entry
The issue was whether the Claimant had been made an offer of suitable accommodation under the Housing Act.
Nabila practices the following areas:
Nabila has experience in the field of regulatory law. She represents professional disciplinary proceedings and has represented registrants in the NMC, HPC (now HCPC), and has been instructed in GMC matters.
Nabila’s strategic approach to disciplinary hearings allows for swift resolutions.
Nabila is particularly familiar with the interplay between the employment tribunal and regulatory proceedings, and finds herself instructed in Unfair Dismissal claims as well as misconduct disciplinaries.
In R (Romania Vargas Sevilla) -v- Secretary of State for Home Department [2023] CO/4745/2023 Mr Clive Sheldon KC sitting as Deputy High Court Judge granted…
The Queen on the application of Anderbrhn v Croydon Comissioning Group CO/1106/2021 Permission to judicial review has been granted in a case where an Asylum…
"Nabila is very good."
‘Nabila Mallick is a high-quality barrister whose practice incorporates significant expertise in employment disputes. She acts for both employers and employees and is particularly well versed in discrimination matters.’
"Ms Mallick approached the case strategically, provided very clear advice and written grounds, and the outcome for our client was positive."
‘Nabila is passionate about her client’s case and is not afraid to challenge the courtroom or do things a bit differently. She uses these attributes to get the best result for the client.’
"Very knowledgeable, understanding, and responsive."
"She is a very passionate but reasonable advocate. She's also a keen and hard-working barrister." "She has been great to work with every time and very responsive."
"Nabila is tenacious and detailed in her approach to her cases, she is passionate and enthusiastic and fights for her clients to the end."
"Very passionate about what she believes in. She is very focused, results driven, and cares about making a positive difference."
‘She fights her client’s case with real passion, particularly in discrimination matters.’
"Acts primarily for claimants in dismissal and discrimination claims."
"A very conscientious barrister."
"Nabila is as far removed from the archetypal rapacious lawyer as it seems possible to be. She is personable, committed, thorough, acute and strategic - in fact, someone who always gives 110 per cent to advance her client’s cause."
"Please could you pass on my congratulations to Counsel for the fantastic result ... Really appreciate the hard work and the costs tactics, which paid dividends in the end."
She has appeared on the BBC Inside Out programme (6th February 2017) and BBC World News (Karine Giannone) 6th February 2017. She appears regularly as a guest lawyer on Venus TV.
She has participated on radio debates with Eddie Nestor BBC Drive Time, Mim Sheikh BBC Asian Network and BBC Three counties with Jonathan Vernon-Smith.
She has been quoted in BBC News reports (on 6th February she raised the issue of President Trumps policies influencing the increase of discrimination of Muslim employees in the UK).
Her cases have been regularly reported in the British Press, The Times, The Telegraph, The Sun, The Daily Mail,The Evening Standard, The Jewish Chronicle and The Muslim Weekly
She has been quoted on line magazines and academic journals on issues of religious discrimination.
She has lectured in seminars, more recently the Health and Well Being conference (2015) and for the West Midlands Lawyers Group on religious discrimination.
Featured in the Kings College Alumni exhibition
Worked for European Lawyers in Lesvos (funded by German Bar association) in Moria Camp in 2018 as a volunteer Lawyer
Named by Lawyer Magazine 2019 , as number 1 out of top ten busiest Employment Barristers at the Employment Appeal Tribunal
Also add Keynote speaker at International Womens Day 2020 Brent shared a stage with Shadow Equalities Minister Dawn Butler
Appears regularly as a guest lawyer on Venus TV to provide commentary on immigration matters.
Participates from time to time on radio/TV broadcast on contemporary issues.
In R (Romania Vargas Sevilla) -v- Secretary of State for Home Department [2023] CO/4745/2023 Mr Clive Sheldon KC sitting as Deputy High Court Judge granted…
The Queen on the application of Anderbrhn v Croydon Comissioning Group CO/1106/2021 Permission to judicial review has been granted in a case where an Asylum…
