Module 1
Entitlement to Bring a Claim
Question 1: Based on the information so far, is this Claimant entitled to bring his claim?
The Claimant has fulfilled their obligation to participate in the early conciliation (EC) process with National
Vehicle Retail PLC and has successfully obtained an Early Conciliation certificate.
Unfair Dismissal:
Firstly, the Claimant must meet specific criteria, including being classified as an employee, maintaining
continuous employment for at least two years, experiencing a dismissal, and not falling under any excluded
categories (e.g., armed forces, police). The Claimant undeniably satisfies these criteria, as exemplified by Frank
Smith's 12-year tenure as an employee, dismissal due to misconduct, and absence from any excluded category.
Equally important is the determination of whether the claim has been filed within the stipulated time frame. The
claim must be submitted to the Employment Tribunal within three months from the Claimant's termination date,
with allowances for clock-stopping during the ACAS early conciliation procedure. The Claimant has adhered to
this timeframe, having lodged the claim within two months and eight days. This calculation is based on Frank
Smith's dismissal on 6 July 2023, with the early conciliation period spanning from 12 August to 14 September
and the claim was received by the Employment Tribunal on 12 October 2023.
Age Discrimination:
Any discrimination claim must be initiated within three months from the date of the relevant actions or a period
deemed just and equitable by the Tribunal. In this case, it remains unclear when the discriminatory comments
were made. The statement "Michael has over the years made derogatory comments" implies a potential delay in
bringing the claim. Furthermore, the reference to "on one occasion last year" extends beyond the three-month
limit. However, the Tribunal may consider this delay just and equitable.
It is worth noting that in cases involving a continuing act of discrimination, the three-month period only
commences after the last act of discrimination occurs, with an extension for the duration of the ACAS early
conciliation procedure. As previously mentioned, even the vague reference to "on one occasion last year"
exceeds the three-month limit. Nevertheless, the Claimant has stated, "I was and am still very upset about this
remark," which could influence the Tribunal's decision. Consequently, it remains uncertain whether the Claimant
is entitled to pursue this claim.
Unlawful Deduction of Wages:
The claim must be presented to the Employment Tribunal within three months of the wage deduction taking
place. However, the claim's details do not specify when the bonus and commission were expected to be paid. It
just states ‘which should have been paid into my bank account on top of my usual payroll salary’. More
information is necessary in this regard, and a thorough examination of the Claimant's employment contract is
required to determine whether a deduction is permissible. Otherwise, there is no clear entitlement for the
Claimant to advance this claim.
Deadlines for Response
Question 2: What actions would/could you take to ensure that the deadline for response in this claim cannot be
missed?
To ensure that the deadline for responding to this claim is not missed, the following actions should be taken:
,1. Ensure that the case number (123456/2015) is clearly mentioned in all correspondence related to the claim
(this will help in the proper identification and tracking of the case) and make sure to provide all necessary
information marked with an asterisk on the response form.
2. Submission Method: The notice of claim was issued by the Employment tribunal on 13th October 2023. The
notice of claim specifies that any response to the claim must be received at the Tribunal office by 16th
November 2023, giving 28 days in total to respond to the claim. This can be done in two ways, either completing
the paper form attached to the notice of claim and returning to the Tribunal in good time by 16th November 2023
or alternatively responding to the claim online by visiting the official website www.gov.uk/being-taken-to-
employment-tribunal-by-employee/overview. Submitting a response online could be a better option for ensuring
that the deadline for response is not missed as it is sent directly to the tribunal office handling the case,
eliminating the need to send physical copies by post.
3. Requesting an Extension: If, for any valid reason, the deadline to submit the response to the claim cannot be
met, requesting an extension in writing and including a full explanation of why more time is needed must be
made to the tribunal within the initial 28-day limit (by 16th November). Failing to do so may result in the claim
being treated as uncontested, potentially leading to a judgment against the Respondent.
However, if an extension application is made after the 28-day time limit has passed, a draft of response or a
valid explanation for why this cannot be done must be submitted. An Employment Judge will evaluate the
request for an extension, and you will be informed of their decision.
Conflicts of Interest
Question 3: With reference to the SRA Code of Conduct, please explain any professional conduct issues
arising out of Michael Davies being named as a respondent?
Firstly, Michael Davies being named as a respondent could give rise to a client conflict outlined in paragraph 6.2
of the SRA code of conduct. In acting for both Michael and the company, this could damage the possibility for
the firm to act in the best interests of the client (Principle 7) unless one of the exceptions applies.
Secondly, this could also raise a professional conduct issue in relation to confidentiality outlined in paragraph 6.3
of the SRA code of conduct. It states that firms must keep the affairs of clients confidential unless disclosure is
required or permitted by law or the client consents. Any breach of confidentiality will be a breach of professional
conduct. This can be an issue when acting for both clients.
Thirdly, paragraph 4.2 of the SRA code of conduct is called into question here regarding providing a competent
service that takes account of client’s needs and circumstances. Balancing the employer and employee could
raise this concern. This makes it difficult to uphold principle 7 which is acting in the best interests of each client.
Question 4: In your judgment, can the firm continue to act for both Michael Davies and National Vehicle
Retail in this claim?
Firstly, paragraph 6.2 of the SRA Code of Conduct provides that a firm must not act if there is a client conflict
(where your separate duties to act in the best interests of two or more clients conflict), or a significant risk of a
client conflict.
However, a firm may still act for both parties in defined circumstances. The first is where the clients
have a substantially common interest in relation to the matter and the second is where the clients
are competing for the same objective. The first is more likely to apply to this situation. The
conditions to be met for acting under this exception is:
a) All clients must give their informed consent in writing to firm
, b) Where appropriate, effective safeguards are put in palace to protect client’s information
c) Firm is satisfied it is reasonable for them to act for all clients
On this basis, the firm could continue to act for both if the conditions above are met.
Preliminary Case Analysis
Question 5: What is your assessment of the potential size of this claim?
To answer this question, the overall potential size of the claim based on my assessment below could fall within
the range of £23,876.50 (lower end) and £46,600.50+ (higher end, including uncapped compensation
possibility).
Unfair dismissal:
Reason for dismissal
In question 1, I established that the eligibility and time limits were satisfied for the client (National Vehicle Retail
PLC). From this point, the burden is now on the client to prove there was a potentially fair reason for the
dismissal. In this case, the respondent will be seeking to rely on reason of conduct.
Did National Vehicle Retail act reasonably in dismissing the employee?
As the potentially fair reason for the dismissal has been established (conduct), the tribunal must then decide if
National Vehicle Retail acted reasonably in dismissing Frank Smith for that reason. The normal test of
reasonableness under section 98(4) of the Employment Rights Act 1996 (ERA) applies to all circumstances of
the case including the size of administrative resources of the client, equity and substantial merits of the case.
The tribunal has to decide whether a reasonable employer in those circumstances and in that business might
have adopted this decision. This test applies to both the decision to dismiss and to the procedure by which the
decision is reached. Below I will apply this to the facts of the case.
Size of administrative resources
● ‘At the Respondent’s site in Colwick’ suggests the company has more offices and that it is a fairly large
company. It is also mentioned at point 10 of the details of the claim that the client has a disciplinary
procedure which is expected in larger companies. This could mean that the tribunal would be less
sympathetic to a larger company.
Equity
● Graham was another car mechanic who ‘had done a similar thing before’ and was treated differently to
Frank Smith. As Graham was treated differently, this strengthens the claimant’s case that it was unfair.
We need more information on how similar the cases actually were.
Substantial merits
● Frank was a long serving employee for 12+ years, did not have any previous warning in relation to
conduct and had a clean formal disciplinary record. With this in mind, Frank should have been treated
more sympathetically.
Procedure
The extent to which the procedure was fair will be influenced by the requirements of the ACAS Code of Practice.
● Investigate the issues - on the facts, Michael suspended Frank pending investigation into the allegation
of gross misconduct.
● Inform the Claimant of the issues in writing - Michael stated that he would confirm the full allegation in a
letter however the claimant states that the respondent failed to obtain a formal statement from the
customer or Graham.
● Conduct a disciplinary hearing with the Claimant - Frank attended a disciplinary meeting on 5th July
2023.
● Inform the Claimant of the decision in writing - The decision was confirmed in writing the day after the
disciplinary meeting.
Entitlement to Bring a Claim
Question 1: Based on the information so far, is this Claimant entitled to bring his claim?
The Claimant has fulfilled their obligation to participate in the early conciliation (EC) process with National
Vehicle Retail PLC and has successfully obtained an Early Conciliation certificate.
Unfair Dismissal:
Firstly, the Claimant must meet specific criteria, including being classified as an employee, maintaining
continuous employment for at least two years, experiencing a dismissal, and not falling under any excluded
categories (e.g., armed forces, police). The Claimant undeniably satisfies these criteria, as exemplified by Frank
Smith's 12-year tenure as an employee, dismissal due to misconduct, and absence from any excluded category.
Equally important is the determination of whether the claim has been filed within the stipulated time frame. The
claim must be submitted to the Employment Tribunal within three months from the Claimant's termination date,
with allowances for clock-stopping during the ACAS early conciliation procedure. The Claimant has adhered to
this timeframe, having lodged the claim within two months and eight days. This calculation is based on Frank
Smith's dismissal on 6 July 2023, with the early conciliation period spanning from 12 August to 14 September
and the claim was received by the Employment Tribunal on 12 October 2023.
Age Discrimination:
Any discrimination claim must be initiated within three months from the date of the relevant actions or a period
deemed just and equitable by the Tribunal. In this case, it remains unclear when the discriminatory comments
were made. The statement "Michael has over the years made derogatory comments" implies a potential delay in
bringing the claim. Furthermore, the reference to "on one occasion last year" extends beyond the three-month
limit. However, the Tribunal may consider this delay just and equitable.
It is worth noting that in cases involving a continuing act of discrimination, the three-month period only
commences after the last act of discrimination occurs, with an extension for the duration of the ACAS early
conciliation procedure. As previously mentioned, even the vague reference to "on one occasion last year"
exceeds the three-month limit. Nevertheless, the Claimant has stated, "I was and am still very upset about this
remark," which could influence the Tribunal's decision. Consequently, it remains uncertain whether the Claimant
is entitled to pursue this claim.
Unlawful Deduction of Wages:
The claim must be presented to the Employment Tribunal within three months of the wage deduction taking
place. However, the claim's details do not specify when the bonus and commission were expected to be paid. It
just states ‘which should have been paid into my bank account on top of my usual payroll salary’. More
information is necessary in this regard, and a thorough examination of the Claimant's employment contract is
required to determine whether a deduction is permissible. Otherwise, there is no clear entitlement for the
Claimant to advance this claim.
Deadlines for Response
Question 2: What actions would/could you take to ensure that the deadline for response in this claim cannot be
missed?
To ensure that the deadline for responding to this claim is not missed, the following actions should be taken:
,1. Ensure that the case number (123456/2015) is clearly mentioned in all correspondence related to the claim
(this will help in the proper identification and tracking of the case) and make sure to provide all necessary
information marked with an asterisk on the response form.
2. Submission Method: The notice of claim was issued by the Employment tribunal on 13th October 2023. The
notice of claim specifies that any response to the claim must be received at the Tribunal office by 16th
November 2023, giving 28 days in total to respond to the claim. This can be done in two ways, either completing
the paper form attached to the notice of claim and returning to the Tribunal in good time by 16th November 2023
or alternatively responding to the claim online by visiting the official website www.gov.uk/being-taken-to-
employment-tribunal-by-employee/overview. Submitting a response online could be a better option for ensuring
that the deadline for response is not missed as it is sent directly to the tribunal office handling the case,
eliminating the need to send physical copies by post.
3. Requesting an Extension: If, for any valid reason, the deadline to submit the response to the claim cannot be
met, requesting an extension in writing and including a full explanation of why more time is needed must be
made to the tribunal within the initial 28-day limit (by 16th November). Failing to do so may result in the claim
being treated as uncontested, potentially leading to a judgment against the Respondent.
However, if an extension application is made after the 28-day time limit has passed, a draft of response or a
valid explanation for why this cannot be done must be submitted. An Employment Judge will evaluate the
request for an extension, and you will be informed of their decision.
Conflicts of Interest
Question 3: With reference to the SRA Code of Conduct, please explain any professional conduct issues
arising out of Michael Davies being named as a respondent?
Firstly, Michael Davies being named as a respondent could give rise to a client conflict outlined in paragraph 6.2
of the SRA code of conduct. In acting for both Michael and the company, this could damage the possibility for
the firm to act in the best interests of the client (Principle 7) unless one of the exceptions applies.
Secondly, this could also raise a professional conduct issue in relation to confidentiality outlined in paragraph 6.3
of the SRA code of conduct. It states that firms must keep the affairs of clients confidential unless disclosure is
required or permitted by law or the client consents. Any breach of confidentiality will be a breach of professional
conduct. This can be an issue when acting for both clients.
Thirdly, paragraph 4.2 of the SRA code of conduct is called into question here regarding providing a competent
service that takes account of client’s needs and circumstances. Balancing the employer and employee could
raise this concern. This makes it difficult to uphold principle 7 which is acting in the best interests of each client.
Question 4: In your judgment, can the firm continue to act for both Michael Davies and National Vehicle
Retail in this claim?
Firstly, paragraph 6.2 of the SRA Code of Conduct provides that a firm must not act if there is a client conflict
(where your separate duties to act in the best interests of two or more clients conflict), or a significant risk of a
client conflict.
However, a firm may still act for both parties in defined circumstances. The first is where the clients
have a substantially common interest in relation to the matter and the second is where the clients
are competing for the same objective. The first is more likely to apply to this situation. The
conditions to be met for acting under this exception is:
a) All clients must give their informed consent in writing to firm
, b) Where appropriate, effective safeguards are put in palace to protect client’s information
c) Firm is satisfied it is reasonable for them to act for all clients
On this basis, the firm could continue to act for both if the conditions above are met.
Preliminary Case Analysis
Question 5: What is your assessment of the potential size of this claim?
To answer this question, the overall potential size of the claim based on my assessment below could fall within
the range of £23,876.50 (lower end) and £46,600.50+ (higher end, including uncapped compensation
possibility).
Unfair dismissal:
Reason for dismissal
In question 1, I established that the eligibility and time limits were satisfied for the client (National Vehicle Retail
PLC). From this point, the burden is now on the client to prove there was a potentially fair reason for the
dismissal. In this case, the respondent will be seeking to rely on reason of conduct.
Did National Vehicle Retail act reasonably in dismissing the employee?
As the potentially fair reason for the dismissal has been established (conduct), the tribunal must then decide if
National Vehicle Retail acted reasonably in dismissing Frank Smith for that reason. The normal test of
reasonableness under section 98(4) of the Employment Rights Act 1996 (ERA) applies to all circumstances of
the case including the size of administrative resources of the client, equity and substantial merits of the case.
The tribunal has to decide whether a reasonable employer in those circumstances and in that business might
have adopted this decision. This test applies to both the decision to dismiss and to the procedure by which the
decision is reached. Below I will apply this to the facts of the case.
Size of administrative resources
● ‘At the Respondent’s site in Colwick’ suggests the company has more offices and that it is a fairly large
company. It is also mentioned at point 10 of the details of the claim that the client has a disciplinary
procedure which is expected in larger companies. This could mean that the tribunal would be less
sympathetic to a larger company.
Equity
● Graham was another car mechanic who ‘had done a similar thing before’ and was treated differently to
Frank Smith. As Graham was treated differently, this strengthens the claimant’s case that it was unfair.
We need more information on how similar the cases actually were.
Substantial merits
● Frank was a long serving employee for 12+ years, did not have any previous warning in relation to
conduct and had a clean formal disciplinary record. With this in mind, Frank should have been treated
more sympathetically.
Procedure
The extent to which the procedure was fair will be influenced by the requirements of the ACAS Code of Practice.
● Investigate the issues - on the facts, Michael suspended Frank pending investigation into the allegation
of gross misconduct.
● Inform the Claimant of the issues in writing - Michael stated that he would confirm the full allegation in a
letter however the claimant states that the respondent failed to obtain a formal statement from the
customer or Graham.
● Conduct a disciplinary hearing with the Claimant - Frank attended a disciplinary meeting on 5th July
2023.
● Inform the Claimant of the decision in writing - The decision was confirmed in writing the day after the
disciplinary meeting.
