Naomi Cunningham

Call date: 1994

Email: Naomi Cunningham

Areas of Law:	Employment & Discrimination

Practice summary

Called to the Bar in 1994, Naomi Cunningham spent a number of years working in London law centres before returning to independent practice in 2004; she joined OTC in April 2008.

Naomi now acts for a mix of employees and large and small employers. She is occasionally instructed in goods and services discrimination as well as in employment matters in the employment tribunals, the EAT and the Court of Appeal. She places an emphasis on demystifying the employment tribunal process for clients with prompt, clear and practical advice. She has particular interests in working time, holiday pay and the minimum wage, and employment in the public and voluntary sectors. She has been instructed in a number of multi-claimant equal pay cases.

Recent successes for Naomi’s clients include a significant ruling by the EAT that an employee on long-term sick leave need not seek to ‘take’ a period of annual leave in order to be entitled to holiday pay; another ruling by the EAT that the employer’s duty to consider at a meeting an employee’s request not to be retired necessitated genuine consideration; and an award of interim relief.

Naomi’s voluntary sector experience informed her popular and practical book Employment Tribunal Claims: tactics and precedents (3rd ed., with co-author Michael Reed, LAG 2009). Several reviewers describe the book as a ‘must’ for junior employment lawyers and claimants acting in person, and a review in the ELA Briefing adds "Every employment lawyer (including the tribunal judiciary) will learn something of value from reading this book.”

In October 2011, Naomi was invited to join a distinguished panel of senior practitioners and academics from across Europe to speak at a seminar in Brussels organised by the European Commission and the European Network of Legal Experts in the Non-discrimination Field. She spoke on the subject of the burden of proof in discrimination law.

A selection of recent cases

NHS Leeds v Larner EAT 29/6/2011 Whether an employee on long-term sick leave must take steps to exercise her right to annual leave in order to be entitled to holiday pay.

Hussain v Acorn Independent College Ltd [2011] I.R.L.R. 463, EAT. Temporary cessation of work; whether temporary cover provided by a teacher counted towards his continuous service.

Compass Group Plc v Ayodele, EAT 14 July 2011 The scope of an employer’s obligation to consider a request not to retire.

Hamilton & ors v NHS Grampian EAT (Scotland) 20 July 2011 (judgment awaited). Whether section 11 of the ERA can be used to determine the existence of an implied term; determination on a point of law without hearing evidence; costs.

St Andrew’s Catholic Primary School v Blundell [2011] EWCA Civ 427 New evidence on appeal; application of rule in Ladd v Marshall.

Vickers v London Fire and Emergency Planning [2010] EWHC 1855 (QB) Meaning of ‘unable to drive for genuine reasons’ in firefighters’ contract.

Blundell v Governing Body of St Andrew's Catholic Primary School [2007] ICR 1451, EAT The first appeal case on the definition of the 'job' to which a woman has the right to return following maternity leave.

Moyhing v Barts & the London NHS Trust [2006] IRLR 860, EAT Sex discrimination against a male student nurse (funded by the EOC).

Network Rail Infrastructure Ltd v Griffiths-Henry [2006] IRLR 865, EAT The burden of proof in discrimination cases.

Comfort v Department for Constitutional Affairs (2006) (ET); (2005) (EAT); [2004] EWCA Civ 349 (CA) Constructive dismissal case remitted by the CA for re-hearing after the original ET failed to deal with allegation of perjury by a senior civil servant giving evidence for the Respondent. The second appeal to the EAT concerned disclosure of the Respondent's notes of evidence from the previous hearing.

Gdynia America Shipping Lines (London) Ltd v Chelminski [2004] ICR 1523, CA Time for appealing an employment tribunal decision.

Kwamin v Abbey National plc [2004] ICR 841, EAT. Delay in promulgation of ET decisions, Article 6.

Addison & Addison v Ashby [2003] ICR 667 Whether child workers entitled under the Working Time Regulations to paid annual leave.