Chapter 10 Outline answer to essay question

You should point out that Florence needs two years’ continuous service to claim unfair dismissal and to obtain a redundancy payment.
You should examine why the criterion of ‘last in, first out’ was applied. If it was agreed with a trade union or other employee representatives, Nightingale Ltd might argue that it is good practice for employers to agree and then implement redundancy criteria. You might refer to Williams v Compair Maxam [1982] (‘Unfair redundancy’). On the other hand, you should explain that ‘last in, first out’ might cause indirect discrimination if it is based on continuous service. If this method of selection has had a disproportionate impact on females at Nightingale Ltd, it will need to be justified. You might refer to Whiffen v Milham Ford Girls School [2001] (‘Unfair redundancy’).
Various methods of avoiding dismissals are found on the ACAS website. Some of these methods are mentioned in the question. In addition, unfair dismissal case law emphasises the need for warnings and consultation with individuals. This would be relevant to Florence because if she had been consulted she would know whether or not she was considered for the vacancy at Enfield and why she did not get the job. You might refer to Mugford v Midland Bank plc [1997] and King v Eaton Ltd [1996] (‘Consultation for unfair dismissal purposes’).
You should observe that s 98(4) ERA requires suitable vacancies to be offered. However, the wording of the document she signed does not give Florence a contractual right to such employment.
You should draw attention to the fact that Florence has a right to notice of dismissal under s 86 ERA or her contract if that is more favourable.