Sarah and Mike are employed by Cortu plc, a national supermarket chain, and work on its bakery counter. They are supervised by Mary. Sara has worked for
the company for fourteen months and Mike has been employed for eight years. Last month Micke was given a first written warning for repeatedly arriving
late to work.
On Monday Sarah served a difficult customer, who overheard Sarah remark to Ben that ‘I can’t stand her’. Sarah was not referring to the customer but a pop
star. The customer complained to Mary who told Sarah to ‘clear her locker’ and leave the store immediately as ‘the customer always comes first’.
As Mary approach the bakery counter to tell Sarah to leave, she spotted Mike wearing his outdoor jacket and asked him why he was late for work again. Mike
explained that he had arrived at work on time but had been helping another colleague, Joe, bring in some deliveries to the store. Mary told him that she did
not want to hear any excuses and that he could explain himself at a disciplinary hearing the following Friday morning. When Mike attended the disciplinary
hearing, Mary handed him a letter in which it stated that he would be dismissed with immediate effect due to persistent lateness and would be paid in lieu of
notice.
A month has passed since Mike was dismissed and he has received no notice of pay. When he called Cortu plc yesterday to ask for his notice pay, Mary told
him that ‘he will not receive a penny’ as has since come to light that Mike lied on an expenses claim for a training event he had attended a few weeks before
his dismissal.
Tasks
⦁ As a member of your legal team, write a report to Sarah and Mike advising them on any claims for unfair dismissal they may have against Cortu plc. (50%)
Advice
Just because the law on unfair dismissal is relatively settled, that does not mean that it is straightforward. Take care to answer the question in sufficient
depth to show the examiner how much you know. Be careful not to miss out on steps. Take time to consider whether the qualifying condition has been met,
whether there has been a dismissal, and what an employer might argue was the potential fair’ reason for dismissal. Remember ‘show your working’.
Question 2
Burn has been employed for ten years as a customer service assistant for a large bank in one of its high street branches. He has always had an excellent
attendance record but recently has a number of short-term absences from work due to back pain. Following a referral from his GP to a specialist, Burn has
been diagnosed with sciatica. He tries to manage his condition through regular exercise and taking anti-inflammatory painkillers but when it flares up, he
finds it difficult to sit for long periods at work. His condition has recently worsened and he is now receiving a pain-relieving injection.
During his most recent flare-up, his GP completed a ‘fit note’ in which she informed the bank that Burn should be fit to return to work in six weeks and that a
‘phased return’ would be welcome. Karen, his line manager, call him to say that she cannot keep his job open indefinitely and that a phased return is out of
the question: ‘ you are either fit or you are not’. At the end of the six-week period when Burn is signed off for a further two weeks, Karen sends him a letter in
which it states that he is being dismissed and will be paid in lieu of notice.
Task
⦁ As a member of the bank legal team, write a letter to Karen advising her on the bank’s potential liability for unfair dismissal. (50%)
Advice
Read the question carefully. The examiner is not asking you about disability discrimination or wrongful dismissal. Any discussion on the irrelevant matter will
not be score marks, will waste time, and will ultimately create a bad impression.
One framework that can be used to answer unfair dismissal questions involves the following five steps: qualification, dismissal, reason, reasonableness,
remedy. In other words, doe Burn qualify to bring a claim, has he been dismissed, is there a potentially fair reason, has the employer acted reasonably, and, if
not, what remedies are available?