business law

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The area of law involved in this scenario is employment, more specifically; contract of employment, discriminatory dismissal, termination of contract employment, rights and remedies of dismissal. The possible claimants that will be advised are Shane and Martha. The possible defendant is Bright Sparks Ltd. The issues that will be addressed for Shane are the Thomas’s actions, unfair dismissal and termination of employment. The issues that will be looked at for Martha are the disability, lack of assistance of Bright Sparks Ltd and resignation. This essay will approach each event in series. The structure of Shane should bring an action against Bright Sparks Ltd for unfair dismissal. In order to bring an action, 3 factors need to be established; does Shane qualify as an employee of bright Sparks Ltd, the dismissal, no fair reason for dismissal and was the ACAS code followed. It is usually obvious whether a party is employed by an employer, there are two types of test used to establish whether a party is an employee; control test and the integration test. The control test looks at what the employee does and how it is done by how much control the employer has over the employee and the integration test is suitable for highly skilled employees. The control test is more suitable for Shane but as it stated that he is an employee of Bright Sparks Ltd, then it is not necessary to go through the test. As he is an employee, the relationship between the two parties is governed by the contract of employment which is subject to statutory provision such as Employment Rights Act 19961. As he is an employee, he is entitled to a written particular within 2 months of employment, S.1 of ERA 1998, which contains all the relevant information regarding the employment, such as the terms of employment. This is especially helpful for suing the company for breaches of any implied, express or common law terms. Overall, we have concluded that Shane is an employee of Bright Sparks Ltd and that statutory provisions apply. The next factor to establish is the dismissal. According to the Employment Rights Act 1996 s.108 (1) that Shane can sue Bright Sparks Ltd if he has worked for them for least 2 years. As he started work in March 2010 and received the termination letter on April 2012 this means that Shane has worked more than 2 years with Bright Sparks, hence he can bring a claim. An employee can only bring a claim when there has been dismissal recognised by law, in this case an actual dismissal was made as the employer wrote a letter of termination. The next step to dismissal is the grounds, s.98 (2) ERA 1996 states that all dismissals are unfair unless the employer can justify the dismissal on one of the grounds, in this case it would be lack of capacity and conduct. In BHS v Burchell [1980] the courts established that the employer must have an honest belief at the time of dismissal that there was a fair reason to dismiss, must have a reasonable grounds for holding that belief and the ground must be based on reasonable investigation. In Shane’s case, the employer failed to provide adequate training as the last review was two years ago and therefore according to British Sulphur v Lawrie (1987) this constituted as unfair dismissal. Also the employer failed to reasonably investigate Shane’s performance as the last review was two years ago, Nottinghamshire County Council v P (1992), which also constitutes as wrongful dismissal. Shane must bring an action against his employer for unfair dismissal within 3 months to the employment tribunal, he can claim while working but his employment needs to end before he can claim any damages2. The Employment tribunal has to decide whether a dismissal is fair or not and this can sometimes be difficult to predict with accuracy. The tribunal look at the facts of the case and assess whether the dismissal was fair and reasonable in fact. There is also the ACAS arbitration scheme which allows ex-employees to submit their...
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