Viewing: Employment for Nabila Mallick

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.
Further information
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
Recommendations
‘A very conscientious barrister.’
Legal 500 2019 Top Tier Band 1
‘She leaves no stone unturned when building cases.’
Legal 500 2017 Top Tier Band 1
'She combines merciless forensic scrutiny with passionate commitment to justice.’
Legal 500 2016 Top Tier Band 1
'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'.
Professor Clive Fraser (Professor of Economics at the University of Leicester
'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.'
Katherine Gibson, Legal Counsel (Employment & Litigation), Coca-Cola Enterprises Ltd.
Notable Cases
Willets v The Jennifer Trust For Spinal Muscular Atrophy (Jurisdictional Points : Claim in time and effective date of termination) [2011] UKEAT 0282_11_2809 (28 September 2011)
X v Y: UKEAT/0322/12/GE
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.
JJ Food Service Ltd v Zulhayir [2013] EWCA Civ 1226 (16 October 2013)
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."
Steen v ASP Packaging Ltd (Unfair Dismissal : Contributory fault) [2013] UKEAT 0023_13_1707 (17 July 2013)
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’…here 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.’
Stuart v London City Airport (Unfair Dismissal : Reasonableness of dismissal) [2012] UKEAT 0273_12_0911 (09 November 2012) overturned on appeal on the basis of facts Stuart v London City Airport Ltd [2013] EWCA Civ 973 (31 July 2013) (respondent was represented by Thomas Londen QC)
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.
Brito -babapulle v Ealing Hospital NHS Trust (Disability Discrimination : Disability) [2013] UKEAT 0358_12_1406 (14 June 2013)
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.
Roberts v Chief Constable of Hampshire and Isle of Wight (Rev 1) (Practice and Procedure: Amendment) [2014] UKEAT 0254_14_1408 (14 August 2014)
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.
Fraser v University and College Union & Ors (Practice and Procedure: Bias, misconduct and procedural irregularity) [2014] UKEAT 0266_14_1411 (14 November 2014)
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.
Fraser v University Of Leicester & Ors (Race Discrimination) [2014] UKEAT 0155_13_0506 (5 June 2014) Fraser v University of Leicester & Ors [2015] EWCA Civ 212 (17 March 2015)
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.
Brito-Babapulle v Ealing Hospital NHS Trust [2014] EWCA Civ 1626 (29 October 2014)
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.
Ahmed v Ministry of Justice (Race Discrimination: Direct) [2015] UKEAT 0390_14_0707 (07 July 2015)
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.
Bham v 2Gether NHS Foundation Trust (Race Discrimination : Direct) [2015] UKEAT 0417_14_0708 (07 August 2015)
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.
Brito-Babapulle v Isle of Wight NHS Trust (Victimisation Discrimination: Detriment) [2016] UKEAT 0090_16_1006 (10 June 2016)
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.
Devai v London South Bank University [2015] EWCA Civ 807 (24 June 2015)
#38 I have had the advantage of focussed submissions from Ms Mallick, who has considerable experience in this court and the courts below.
Ekwelem v Excel Passenger Service Ltd (Unlawful Deduction from Wages) [2016] UKEAT 0291_15_2302 (23 February 2016) President Simler QC
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.
Portsmouth Hospitals NHS Trust v Corbin (Contract of Employment) [2017] UKEAT 0163_16_0501 (5 January 2017)
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.
Kenbata v Westminster City Council (Harassment) [2017] UKEAT 0063_16_1701 (17 January 2017)
ET could not rely on bad faith, where Respondent accepted that the claimant had made protected act complaint for the purposes of harassment.
Asghar & Co Solicitors v Habib (Unfair Dismissal) [2017] UKEAT 0332_16_1505 (15 May 2017)
Represented the Respondent , succeeded on the issue on appeal concerning affirmation of repudiatory breach. Remitted for rehearing on the issue.
Mustafa & Anor v Trek Highways Services Ltd & Anor (Transfer of Undertakings: Transfer) [2016] UKEAT 0063_15_2901
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.
Mr Q Qu v Landis & Gyr Ltd: 3400216/2015 Remedy
this decision of the ET whilst successfully resulting in 293,000 in remedy is appealed for erroneous decision on pension loss.
Mr Q Qu v Landis & Gyr Ltd: 3400216/2015
The claimant succeeded in achieving 80% of his costs
Ms S Olukoya v London Borough of Tower Hamlets: 3200009/2017 Reasons
succeeded upon remedy to an awards of 473,000.
https://assets.publishing.service.gov.uk/media/5b6dafe0e5274a1ceec90536/Ms_S_Olukoya_v_London_Borough_of_Tower_Hamlets_32000092017_Reasons.pdf
Awards
Nominated for Legal aid Lawyer of the Year (Barrister category) (2009)
Sydney Elland Goldsmith Bar Pro Bono shortlisted (2013)
Corporate social responsibility &Bar Pro Bono WMLS (2014, 2015)
Barrister of the Year (Leicestershire law society) (2015)
Employment Lawyer of the Year (2018) Lawyer Monthly weekly
Employment Lawyer of the year (2018) Finance Magazine
Memberships
Employment Law Association
Association of Regulatory and Disciplinary Lawyers
Employment Law Bar Association
Liberty
Qualifications
LLB (HONS) 2: 1 (Hghest 1st in final year paper)
LLM in commercial and corporate Law Enter any Qualifications here.