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PH311 Employee Law And Relations

tag 0 Download 17 Pages / 4,170 Words tag 19-07-2021


Case Study

Des and Sarah Cole are the owners of an independent, up-market wine merchant's store based on the high street of a market town. The shop stocks unusual labels which Des and Sarah import directly from smaller, family-run vineyards in Australia, New Zealand and South Africa. The staff at the store are highly knowledgeable and give excellent advice to customers who include local residents, tourists visiting the town and hotels, bars and restaurants. The business also sells an increasing quantity of wine through its website. Des and Sarah spend most of their time travelling and sourcing new vintages. They live in the South of France and only visit their retail premises two or three times a year. They have for some years delegated day-to-day management of the retail business to Diane Clarke and her deputy Graham Nutty who have run it very efficiently. Two assistants, Jack Gold and Kelly Jones have also been employed at the shop for several years.

Things started to go wrong earlier in the year when Diane slipped on the steps leading from the shop to the stockroom. She fell forwards and injured herself badly. She has been off work for four months now with an acutely painful neck injury which is showing no signs of improvement. She wears a neck-brace and has to keep her head still all the time.

When Diane was signed off sick Graham took over as manager. Initially things appeared to be going well, but last month Des received a letter from Kelly in which she informed him that she suspected Graham and Jack were importing wines themselves and that they were selling these bottles to customers and pocketing the cash. Des flew back immediately and suspended the two men. It did not take him long to find evidence of Graham and Jack’s fraud. He interviewed the two men separately and both confessed and apologised for their actions. He then dismissed them, without notice, on grounds of gross misconduct. Both subsequently wrote to him appealing their dismissals. In their appeal letters they both argued that the amounts of money they had gained were only small (less than £100 each), that they had had impeccable disciplinary records until this matter and that they had not realised that what they had done would be considered to be gross misconduct. Both asked to be reinstated. Des invited Graham to a meeting and listened to what he had to say. He decided not to accept the appeal and wrote confirming the dismissal. Jack was sick on the day that Graham's appeal was heard, so his meeting took place the following week. On this occasion it was Sarah who met with him. Sarah was more sympathetic than her husband had been in Graham's case and decided that Jack should be reinstated with a final written warning. She wrote to him asking him to report for work again the following week.

Following Graham's suspension Des called former, semi-retired employee called Ralph Broom and asked him if he could take over as shop manager on a temporary basis with immediate effect. Ralph was reluctant, but agreed when Des offered him a good sum and said that he was desperate due to Diane being sick and Graham being suspended. A formal offer letter was sent along with a contract which Ralph signed. This included a clause in which Ralph agreed to opt-out of his right to a maximum working week of 48 hours under the terms of the Working Time Regulations. Ralph started work the following Monday and worked through that week and the following weekend. He then called Des to ask if he could take a day off. The answer was 'no'. Ralph then worked through that week, before calling Des again begging to be allowed the next weekend off on the grounds that he was 'totally knackered.' Des again refused the request. He wanted Ralph to 'hold the fort' for a further few days until he could return to take over for a day or two to give Ralph a break. An argument then developed between the two men. Ralph stated that he was simply not prepared to work on so many consecutive days without a day off. Des became angry and sacked him over the phone.

On the same day Kelly called Sarah to explain that her car had been badly vandalised while it was parked outside her house. It had been kicked about and two windows had been smashed in. The words 'snitching bitch' had been scratched into the paint-work of the bonnet. Kelly explained that this vandalism could only have been perpetrated by Graham or some of his friends as revenge for her letting his employers know about his fraudulent activities. She asks Sarah if she and Des would cover the cost of the repairs. She wants to avoid making an insurance claim for fear that her premium will increase substantially. Sarah refused this request, stating that it was a matter that Kelly needed to sort out with the police and her insurers. Kelly is very upset by this unsympathetic response which adds to the considerable stress she is already suffering from as a result of the vandalism. Kelly therefore decides to resign.

With only Jack available to work, Des and Sarah now have to return to the UK to staff and manage the shop themselves. They decide, after visiting Diane, that there is no chance that she will be able to return to work in the near future, if at all. They discuss the matter with their insurance company and decide to offer her a payment of £25,000 (a year's salary) by way of a full and final settlement. This will enable them to recruit a fresh team of staff and to start training them up.

Last week several letters arrived from different solicitors' firms threatening Des and Sarah with legal action and demanding further sums by way of settlement.

  • Diane's solicitor states in his letter that she will bring claims of disability discrimination andunfair dismissal unless she receives a further payment of £50,000.
  • Graham'ssolicitor states that he will bring a claim of unfair dismissal based on unreasonableness on the part of the employer.
  • Kelly'ssolicitor writes demanding a settlement of £20,000 in return for the withdrawal of her three claims of constructive dismissal, sex discrimination and breach of the Public Interest Disclosure Act,
  • Ralph's solicitor demands £15,000, while also alleging unfair dismissal and breach of theWorking Time Regulations.

Using the relevant case laws, answer the following questions

1. Explain what each of the claims means and the basis in law to Des and Sarah who have no detailed understanding of employment law and are shocked to receive these letters. 

2. Critically evaluate the relative strengths of each case and outline any defences that Des and Sarah might be able to use in defending them.

3. With consideration of the circumstances of this case study, critically discuss the ways in which Des and Sarah could have avoided these potential conflict situations in the first place.

In your answer, use any examples of good practice from advisory organisations such as ACAS and CIPD, along with any relevant human resource management models and frameworks, to make recommendations to Des and Sarah that the might avoid this in the future. 

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