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Wrongful Dismissal And Summary Dismissal: Law Problem Style Question

3900 words - 16 pages

"Flighty works for Bossman an Co. as a sales assistant. Although the quality of his work has been satisfactory, he has a rather quick temper and is given to disagreeable behaviour. One morning, Flighty was asked by the store manager to help another colleague to stock the drinks shelf. He replied, 'Two fingers to your drinks shelf, and that goes for you too!" He then stormed off, pushing ast a customer. Bossman's general manager, hearing about Flighty's behaviour has decided that such attitude as Flighty's has no place in their company. She calls Flighty into her office and tells him that he is no longer welcom in the company."Advise Flighty and Bossman & Co. of their rights and obligations.The material facts of the problem in hand suggest a number of legal issues to be addressed:(a) Has a dismissal taken place, which falls under statutory definition of dismissal?(b) Is the summary dismissal justified?(c) Is there a possible vicarious liability arising from assault?(d) What are the remedies available?To advise Flighty and Bossman and Co. in respect of a possible wrongful dismissal, it is necessary to consider not only the common law aspects of contracts of employment but not withstanding that we will not be considering unfair dismissal remedies under statue, we must consider the statutory requirements for employment contracts.The law governing the issues identified is found in common law and statute, with guidance also given by relevant codes of practice. The main statute is the Employment Rights Act 1996. Although statue has largely superseded common law, where there has not been a decided case on similar facts under the statute, the court or tribunal will look to earlier common law cases. Non-statutory materials such as Codes of Practice and handbooks issued by competent authorities such as the Advisory, Conciliation and Arbitration Service (ACAS) although not strictly relating to an action of wrongful dismissal may also be considered as they offer best practice guidelines for employers.The foundations of employment law are entrenched in contract law. It is the contract of employment that lays out the rights and obligations of the parties by way of express and implied terms. Express terms are those written into the contract and implied terms are those the law will imply by conduct, custom, behaviour of its parties or to give business efficacy. To limit any confusion as to what has been agreed, legislation now requires that the employer include specific contract terms and should issue a written declaration of the principle terms and conditions of the contract (a Section 1 (S.1) statement), to employees with one month's service, within two months (ERA 1996). This must include, amongst other things, the job description and details of the length of notice to end the contract by either party. It should be noted that the Section 1 statement is not the contract; it is merely evidence of it.The requirements of the ERA 1996 section 1 statement, for a...

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