Nicola Newbegin

Year of call 2008

CClerk

Paul Adams
020 7269 0305 Email Paul

Nicola specialises in employment, discrimination and professional discipline, as well as undertaking related work in the fields of judicial review, human rights and data protection/privacy.

Nicola appears regularly in the Employment Tribunals, the Employment Appeal Tribunal, the County Courts, the High Court and the Court of Appeal, as well as before the major healthcare regulators. Nicola was recently junior counsel for Dr Eva Carneiro in her claims against Chelsea Football Club and Jose Mourinho for unfair dismissal and sex discrimination.

Nicola has particular expertise in:

  • High Court breach of contract claims relating to doctors and dentists (eg McMillan v Airedale (CA), Powys v Dusza & Sobhani (CA), Mattu v. Coventry and Warwickshire (CA), Chakrabarty v Ipswich, Dr A v. HTX, R (Puri) v. Bradford; Lim v. Wolverhampton, X v. Surrey and Sussex)
  • TUPE (eg Boxall v. Innserve, Vaseer v Secretary of State & Ors)
  • Collective unlawful deductions from wages / enhanced redundancy payment claims (eg CSC v McAlinden (CA), Peacocks v Peregrine (EAT))
  • Collective Redundancy Claims (eg TSSA v. Network Rail)
  • Discrimination (eg Carneiro v Chelsea Football Club and Mourinho, Cully v Lewisham & Greenwich NHS Trust, Kontogeorges v. Waltham Forest)
  • Whistleblowing (eg Monro v Barts Health NHS Trust, Dr Prasad v Hertfordshire Community NHS Trust)
  • Unfair dismissal (eg Orphanou v. London Development Agency, Newcastle v Khan (EAT))


Previous Legal Experience

Nicola trained as a solicitor at Linklaters qualifying into the Tax Department in January 2003 where she spent five years as a specialist tax litigator. Nicola was involved in bringing cases in both the Tax Tribunals and the High Court. Nicola obtained Higher Rights of Audience as a Solicitor-Advocate. Nicola has also undertaken voluntary work at two law centres as well as for FRU.

Education
Nicola read Law at Keble College, Oxford. During her time there she won the Keble College Mooting Competition, was runner-up in the Oxford University Law Society Mooting Competition and won the Oxford v Lincoln's Inn Moot.

Professional Memberships
ILS; ELBA; ELA; ARDL

Directory Rankings
Nicola is ranked as a leading individual in both Chambers & Partners and Legal 500.

  • William Jones's Schools Foundation Trustees v Parry (EAT) – see link to decision
  • Carneiro v Chelsea FC and Jose Mourinho
  • Charlotte Monro v Barts NHS Trust

 


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.

 

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:

  • 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.  Please click here for links to related 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.  Please click here for a link to the case;
  • 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;
  • Monro v Barts Health NHS Trust – Nicola represented Mrs Monro in her claims for automatic unfair dismissal on trade union grounds, automatic unfair dismissal for having made a protected disclosure (whistleblowing) and ordinary unfair dismissal.  The claim was recently heard over seven days in the London East Employment Tribunal – please click here for links to related press coverage;
  • 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;
  • Cully v South London NHS – Nicola appeared for Mrs Cully in respect of her claims for direct race discrimination and harassment, heard over three days in the Ashford Employment Tribunal;
  • Margione v Medway Travel – Nicola represented Mrs Margione in her claim for sex / pregnancy discrimination following her dismissal allegedly on grounds of redundancy;
  • Hall v Bar Chocolate – Nicola successfully represented the Respondent against the Claimant’s claim of automatic dismissal on the basis of an alleged protected disclosure (whistleblowing);
  • Kontogeorges v. London Borough of Waltham Forest - Nicola successfully represented the London Borough of Waltham Forest in a seven day hearing involving race, sex and age discrimination claims as well as numerous whistleblowing claims. All claims were successfully resisted;
  • Orphanou v. London Development Agency - Nicola represented the Claimant in his successful claim for unfair dismissal on grounds of redundancy.

 

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 [2013] 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:

  • McMillan v Airedale [2014] EWCA Civ 1031, [2014] 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 wide spread 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 [2015] 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) [2014] EWHC 2735; [2014] 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 [2012] EWCA Civ 641; [2012] 4 All ER 359; [2013] ICR 270; [2012] 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 [2012] 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 [2011] EWHC 970 (Admin), [2011] 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 [2011] 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 [2011] 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.

 

Non-Employment Discrimination

 

As well as having an extensive discrimination practice in the employment sphere, Nicola regularly provides advice and drafts pleadings for discrimination claims in the county court, including claims relating to the provision of services and public functions and the provision of education and related services.

Recent matters have included:

Advising and drafting particulars of claim for a PHD student alleging disability discrimination by his further education provider;
Advising and drafting a defence for an NHS trust facing claims of discrimination on grounds of gender reassignment by one of its patients.  This also involved advising in respect of complex data protection and human rights issues.


Nicola enjoys a growing practice in the field of professional discipline, particularly in respect of healthcare professionals.  Nicola has been involved in proceedings before the Medical Practitioners Tribunal Service (MPTS), the General Dental Council (GDC), Health and Care Professions Council (HCPC) and the Nursing and Midwifery Council (NMC).

Examples of Nicola’s recent and ongoing cases include:

  • Successfully representing before the HCPC a premier league first team physiotherapist, following which the HCPC concluded that there had been no misconduct and that the physiotherapist’s fitness to practise was not impaired;
  • Representing a dentist at an IOC where Nicola succeeded in having only minimal conditions imposed relating to a drink driving conviction;
  • Representing a doctor at an IOT who was accused of practising outside his scope of practice;
  • Representing before the HCPC a physiotherapist accused of 21 heads of misconduct, including claims of sexual harassment;
  • Advising and representing a dentist on an appeal to the First Tier Tribunal in respect of conditions imposed by NHS England, in a case that may have implications for all dentists returning to work following a period away from work;
  • A three day fitness to practise hearing before the HCPC at which Nicola represented an operating department practitioner (OPD) facing both dishonesty charges and misconduct charges relating to the carrying out of his professional duties.  Following half time submissions by Nicola, all of the dishonesty charges were dropped and the final determination was that there had been no conduct amounting to misconduct and as such the practitioner’s fitness to practise was not impaired;
  • A review of an interim order by the GDC at which Nicola represented a dentist whose practice was subject to conditions which were tantamount to a suspension.  Nicola successfully persuaded the GDC Interim Orders Committee to replace the existing conditions with new conditions that allowed the dentist to return to practice.

 

Nicola’s interest in this area is supported by her extensive experience before the High Court and Court of Appeal in respect of doctors disciplinary claims (for example Dr Chakrabarty v Ipswich Hospital NHS Trust (with NCAS intervening) [2014] EWHC 2735; [2014] Med LR 379 which examined the interaction between internal trust capability proceedings and proceedings before the GMC / MPTS and Dr Mattu v University Hospitals of Coventry and Warwickshire NHS [2012] EWCA Civ 641; [2012] 4 All ER 359; [2013] ICR 270; [2012] IRLR 661 which considered the application of Article 6 to doctors disciplinaries).

She has also been involved in a number of judicial reviews involving doctors in training.

 


Nicola has advised in respect of judicial review claims both as a barrister and during her former career as a solicitor. She has a particular interest in medical related judicial reviews and in judicial reviews relating to the public sector equality duty.

Nicola has advised a major trade union on its ability to challenge the practices of a national employer with a view to improving that body’s practices in respect of equality and diversity, with particular emphasis on the availability of any cause of action under the public sector equality duty.

Recent judicial review cases have included:

  • R (Ekanayake) v Health Education England & Anr – Nicola appeared for Health Education England (led by Giles Powell) resisting an application for judicial review by a trainee surgeon seeking to challenge the refusal to allow him to transfer deaneries;
  • Successfully resisting on behalf of Health Education England a challenge by a trainee GP against a decision not to allow her full qualification as a GP;

 

 Nicola was also junior counsel (led by Giles Powell) in R (on the application of Puri) v. Bradford Teaching Hospitals NHS Foundation Trust [2011] EWHC 970 (Admin), [2011] IRLR 582, a leading judicial review case considering the application of Article 6 to internal trust disciplinary proceedings against doctors.


Nicola has a keen interest in civil liberties and human rights.

She has appeared in a number of leading cases involving significant human rights issues, including Dr Mattu v University Hospitals of Coventry and Warwickshire NHS [2012] EWCA Civ 641; [2012] 4 All E.R. 359; [2013] IC. 270; [2012] IRL. 661, a case concerning the application of Article 6 ECHR to doctors disciplinary proceedings.  The case is currently before the European Court of Human Rights.

Nicola has also recently advised on the impact of Article 8 on cases involving spent convictions and also on the application of Article 8 to questions of patient privacy.

Nicola has lectured on numerous occasions the subjects of discrimination and human rights and human rights at work.

 

DATA PROTECTION / PRIVACY

 

Nicola has a growing practice concerning data protection and related privacy issues.  She has experience of advising NHS Trust in particular about their data protection obligations in respect of both employees and patients.

 


Nicola’s healthcare practice, in particular her work for doctors in the fields of employment, professional discipline and healthcare regulation, means that she has a particular interest in inquest work relating to healthcare professionals.


2008 Call (Former Solicitor and Solicitor-Advocate – Admitted January 2003)

Nicola practises in all areas of employment, discrimination and professional discipline law.  She has a particular interest in disputes between doctors and NHS Trusts, and has appeared in a large number of the most recent High Court cases concerning MHPS, including McMillan v Airedale [2014] EWCA Civ 1031, [2014] IRLR 803 (CA), Dr Chakrabarty v Ipswich Hospital NHS Trust (with NCAS intervening) [2014] EWHC 2735; [2014] Med LR 379 and A v HTX [2012] EWHC 857 (QB).

She has advised both trusts and doctors in respect of internal disciplinary hearings, as well as providing representation in such hearings.  She has acted as a panel advisor in police disciplinary proceedings.

She is described in the 2016 Edition of Chambers & Partners as “thorough, and her legal knowledge is spot on” as well as being “very good in a crisis”.

  • Airedale NHS Foundation Trust v McMillan - Nicola (Led by Mary O'Rourke QC) represented Ms McMillan, a consultant anaesthetist, before the Court of Appeal, successfully resisting the Trust's appeal against and finding that it had no contractual power to increase sanction on appeal from a final written warning to dismissal.

 

  • Powys Teaching Local Health Board v Dr Piotr Dusza & Dr Hako Sobhani [2015] EWCA Civ 15 - Nicola (led by Mary O’Rourke QC) appeared for the dentists before the Court of Appeal, successfully arguing that payment should be by reference to UDAs worked, as opposed to UDAs recorded.

  • Chakrabarty v Ipswich Hospital NHS Trust, with NCAS as an Interested Party – Nicola (led by Giles Powell) appeared for the successful Trust, which claimed that, in the facts, the Trust was entitled to proceed to a disciplinary hearing without an NCAS assessment and without awaiting the MPTS’s final determination.

 

  • CSC v. McAlinden & Ors [2013] 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;

 

  • Newcastle v. Ford and Khan UKEAT/0358/13/MC (EAT) – Nicola successful 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:
  • 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;

 

  • A v. HTX [2012] 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;

 

  • Dr Mattu v. University Hospitals of Coventry and Warwickshire NHS [2012] EWCA Civ 641; [2012] 4 All E.R. 359; [2013] I.C.R. 270; [2012] I.R.L.R. 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

 

pAwards

Legal 500 2017 Leading Individual 2017 C&P Leading individual 2016 L500 Leading Individual C&P 2016 Ranked Barrister

Nicola specialises in employment, discrimination and professional discipline, as well as undertaking related work in the fields of judicial review, human rights and data protection/privacy.

Nicola appears regularly in the Employment Tribunals, the Employment Appeal Tribunal, the County Courts, the High Court and the Court of Appeal, as well as before the major healthcare regulators. Nicola was recently junior counsel for Dr Eva Carneiro in her claims against Chelsea Football Club and Jose Mourinho for unfair dismissal and sex discrimination.

Nicola has particular expertise in:

  • High Court breach of contract claims relating to doctors and dentists (eg McMillan v Airedale (CA), Powys v Dusza & Sobhani (CA), Mattu v. Coventry and Warwickshire (CA), Chakrabarty v Ipswich, Dr A v. HTX, R (Puri) v. Bradford; Lim v. Wolverhampton, X v. Surrey and Sussex)
  • TUPE (eg Boxall v. Innserve, Vaseer v Secretary of State & Ors)
  • Collective unlawful deductions from wages / enhanced redundancy payment claims (eg CSC v McAlinden (CA), Peacocks v Peregrine (EAT))
  • Collective Redundancy Claims (eg TSSA v. Network Rail)
  • Discrimination (eg Carneiro v Chelsea Football Club and Mourinho, Cully v Lewisham & Greenwich NHS Trust, Kontogeorges v. Waltham Forest)
  • Whistleblowing (eg Monro v Barts Health NHS Trust, Dr Prasad v Hertfordshire Community NHS Trust)
  • Unfair dismissal (eg Orphanou v. London Development Agency, Newcastle v Khan (EAT))


Previous Legal Experience

Nicola trained as a solicitor at Linklaters qualifying into the Tax Department in January 2003 where she spent five years as a specialist tax litigator. Nicola was involved in bringing cases in both the Tax Tribunals and the High Court. Nicola obtained Higher Rights of Audience as a Solicitor-Advocate. Nicola has also undertaken voluntary work at two law centres as well as for FRU.

Education
Nicola read Law at Keble College, Oxford. During her time there she won the Keble College Mooting Competition, was runner-up in the Oxford University Law Society Mooting Competition and won the Oxford v Lincoln's Inn Moot.

Professional Memberships
ILS; ELBA; ELA; ARDL

Directory Rankings
Nicola is ranked as a leading individual in both Chambers & Partners and Legal 500.

  • William Jones's Schools Foundation Trustees v Parry (EAT) – see link to decision
  • Carneiro v Chelsea FC and Jose Mourinho
  • Charlotte Monro v Barts NHS Trust

 


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.

 

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:

  • 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.  Please click here for links to related 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.  Please click here for a link to the case;
  • 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;
  • Monro v Barts Health NHS Trust – Nicola represented Mrs Monro in her claims for automatic unfair dismissal on trade union grounds, automatic unfair dismissal for having made a protected disclosure (whistleblowing) and ordinary unfair dismissal.  The claim was recently heard over seven days in the London East Employment Tribunal – please click here for links to related press coverage;
  • 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;
  • Cully v South London NHS – Nicola appeared for Mrs Cully in respect of her claims for direct race discrimination and harassment, heard over three days in the Ashford Employment Tribunal;
  • Margione v Medway Travel – Nicola represented Mrs Margione in her claim for sex / pregnancy discrimination following her dismissal allegedly on grounds of redundancy;
  • Hall v Bar Chocolate – Nicola successfully represented the Respondent against the Claimant’s claim of automatic dismissal on the basis of an alleged protected disclosure (whistleblowing);
  • Kontogeorges v. London Borough of Waltham Forest - Nicola successfully represented the London Borough of Waltham Forest in a seven day hearing involving race, sex and age discrimination claims as well as numerous whistleblowing claims. All claims were successfully resisted;
  • Orphanou v. London Development Agency - Nicola represented the Claimant in his successful claim for unfair dismissal on grounds of redundancy.

 

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 [2013] 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:

  • McMillan v Airedale [2014] EWCA Civ 1031, [2014] 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 wide spread 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 [2015] 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) [2014] EWHC 2735; [2014] 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 [2012] EWCA Civ 641; [2012] 4 All ER 359; [2013] ICR 270; [2012] 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 [2012] 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 [2011] EWHC 970 (Admin), [2011] 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 [2011] 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 [2011] 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.

 

Non-Employment Discrimination

 

As well as having an extensive discrimination practice in the employment sphere, Nicola regularly provides advice and drafts pleadings for discrimination claims in the county court, including claims relating to the provision of services and public functions and the provision of education and related services.

Recent matters have included:

Advising and drafting particulars of claim for a PHD student alleging disability discrimination by his further education provider;
Advising and drafting a defence for an NHS trust facing claims of discrimination on grounds of gender reassignment by one of its patients.  This also involved advising in respect of complex data protection and human rights issues.


Nicola enjoys a growing practice in the field of professional discipline, particularly in respect of healthcare professionals.  Nicola has been involved in proceedings before the Medical Practitioners Tribunal Service (MPTS), the General Dental Council (GDC), Health and Care Professions Council (HCPC) and the Nursing and Midwifery Council (NMC).

Examples of Nicola’s recent and ongoing cases include:

  • Successfully representing before the HCPC a premier league first team physiotherapist, following which the HCPC concluded that there had been no misconduct and that the physiotherapist’s fitness to practise was not impaired;
  • Representing a dentist at an IOC where Nicola succeeded in having only minimal conditions imposed relating to a drink driving conviction;
  • Representing a doctor at an IOT who was accused of practising outside his scope of practice;
  • Representing before the HCPC a physiotherapist accused of 21 heads of misconduct, including claims of sexual harassment;
  • Advising and representing a dentist on an appeal to the First Tier Tribunal in respect of conditions imposed by NHS England, in a case that may have implications for all dentists returning to work following a period away from work;
  • A three day fitness to practise hearing before the HCPC at which Nicola represented an operating department practitioner (OPD) facing both dishonesty charges and misconduct charges relating to the carrying out of his professional duties.  Following half time submissions by Nicola, all of the dishonesty charges were dropped and the final determination was that there had been no conduct amounting to misconduct and as such the practitioner’s fitness to practise was not impaired;
  • A review of an interim order by the GDC at which Nicola represented a dentist whose practice was subject to conditions which were tantamount to a suspension.  Nicola successfully persuaded the GDC Interim Orders Committee to replace the existing conditions with new conditions that allowed the dentist to return to practice.

 

Nicola’s interest in this area is supported by her extensive experience before the High Court and Court of Appeal in respect of doctors disciplinary claims (for example Dr Chakrabarty v Ipswich Hospital NHS Trust (with NCAS intervening) [2014] EWHC 2735; [2014] Med LR 379 which examined the interaction between internal trust capability proceedings and proceedings before the GMC / MPTS and Dr Mattu v University Hospitals of Coventry and Warwickshire NHS [2012] EWCA Civ 641; [2012] 4 All ER 359; [2013] ICR 270; [2012] IRLR 661 which considered the application of Article 6 to doctors disciplinaries).

She has also been involved in a number of judicial reviews involving doctors in training.

 


Nicola has advised in respect of judicial review claims both as a barrister and during her former career as a solicitor. She has a particular interest in medical related judicial reviews and in judicial reviews relating to the public sector equality duty.

Nicola has advised a major trade union on its ability to challenge the practices of a national employer with a view to improving that body’s practices in respect of equality and diversity, with particular emphasis on the availability of any cause of action under the public sector equality duty.

Recent judicial review cases have included:

  • R (Ekanayake) v Health Education England & Anr – Nicola appeared for Health Education England (led by Giles Powell) resisting an application for judicial review by a trainee surgeon seeking to challenge the refusal to allow him to transfer deaneries;
  • Successfully resisting on behalf of Health Education England a challenge by a trainee GP against a decision not to allow her full qualification as a GP;

 

 Nicola was also junior counsel (led by Giles Powell) in R (on the application of Puri) v. Bradford Teaching Hospitals NHS Foundation Trust [2011] EWHC 970 (Admin), [2011] IRLR 582, a leading judicial review case considering the application of Article 6 to internal trust disciplinary proceedings against doctors.


Nicola has a keen interest in civil liberties and human rights.

She has appeared in a number of leading cases involving significant human rights issues, including Dr Mattu v University Hospitals of Coventry and Warwickshire NHS [2012] EWCA Civ 641; [2012] 4 All E.R. 359; [2013] IC. 270; [2012] IRL. 661, a case concerning the application of Article 6 ECHR to doctors disciplinary proceedings.  The case is currently before the European Court of Human Rights.

Nicola has also recently advised on the impact of Article 8 on cases involving spent convictions and also on the application of Article 8 to questions of patient privacy.

Nicola has lectured on numerous occasions the subjects of discrimination and human rights and human rights at work.

 

DATA PROTECTION / PRIVACY

 

Nicola has a growing practice concerning data protection and related privacy issues.  She has experience of advising NHS Trust in particular about their data protection obligations in respect of both employees and patients.

 


Nicola’s healthcare practice, in particular her work for doctors in the fields of employment, professional discipline and healthcare regulation, means that she has a particular interest in inquest work relating to healthcare professionals.


2008 Call (Former Solicitor and Solicitor-Advocate – Admitted January 2003)

Nicola practises in all areas of employment, discrimination and professional discipline law.  She has a particular interest in disputes between doctors and NHS Trusts, and has appeared in a large number of the most recent High Court cases concerning MHPS, including McMillan v Airedale [2014] EWCA Civ 1031, [2014] IRLR 803 (CA), Dr Chakrabarty v Ipswich Hospital NHS Trust (with NCAS intervening) [2014] EWHC 2735; [2014] Med LR 379 and A v HTX [2012] EWHC 857 (QB).

She has advised both trusts and doctors in respect of internal disciplinary hearings, as well as providing representation in such hearings.  She has acted as a panel advisor in police disciplinary proceedings.

She is described in the 2016 Edition of Chambers & Partners as “thorough, and her legal knowledge is spot on” as well as being “very good in a crisis”.

  • Airedale NHS Foundation Trust v McMillan - Nicola (Led by Mary O'Rourke QC) represented Ms McMillan, a consultant anaesthetist, before the Court of Appeal, successfully resisting the Trust's appeal against and finding that it had no contractual power to increase sanction on appeal from a final written warning to dismissal.

 

  • Powys Teaching Local Health Board v Dr Piotr Dusza & Dr Hako Sobhani [2015] EWCA Civ 15 - Nicola (led by Mary O’Rourke QC) appeared for the dentists before the Court of Appeal, successfully arguing that payment should be by reference to UDAs worked, as opposed to UDAs recorded.

  • Chakrabarty v Ipswich Hospital NHS Trust, with NCAS as an Interested Party – Nicola (led by Giles Powell) appeared for the successful Trust, which claimed that, in the facts, the Trust was entitled to proceed to a disciplinary hearing without an NCAS assessment and without awaiting the MPTS’s final determination.

 

  • CSC v. McAlinden & Ors [2013] 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;

 

  • Newcastle v. Ford and Khan UKEAT/0358/13/MC (EAT) – Nicola successful 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:
  • 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;

 

  • A v. HTX [2012] 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;

 

  • Dr Mattu v. University Hospitals of Coventry and Warwickshire NHS [2012] EWCA Civ 641; [2012] 4 All E.R. 359; [2013] I.C.R. 270; [2012] I.R.L.R. 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

 

pAwards

Legal 500 2017 Leading Individual 2017 C&P Leading individual 2016 L500 Leading Individual C&P 2016 Ranked Barrister
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