Legal Advice for Harry and Mrs.Tourniquet in Relation to the Accident that Led to Employment Dismissal - Essay Example

Legal Advice for Harry and Mrs. Tourniquet in Relation to the Accident that Led to Employment Dismissal People and organisations wanting to establish business in the UK are bound to follow legal obligations. The policies implemented were shaped from both common law and legislation (Hardy, 2011). Still, these policies serve the same purpose of promoting orderliness and safety in the entire business industry. This paper aims to apply the laws on labour and tort to a case involving a teacher and pupil. In particular, it aims to arrive at a concrete legal advice for the two parties involved in the case of Mrs. Tourniquet vs. Harry. The Rules of Law The areas of law that have to be taken into consideration in determining the legal measures Harry and Mrs. Tourniquet may rely upon are employment law and the law of tort. The Employment Act of 2008 aims to protect the rights of both employers and employees as they deal with the challenges of business. In particular, the Act embodies a transformation of the policies that govern “disciplinary and grievance procedures” in the UK (Essery, 2009). Based on the Employment Act, employees are obliged to act in accordance with the code of practice that is prepared to avoid misconduct and neglect of responsibilities (Parissis, 1999, p. 123). If an employee fails to fulfill the responsibilities in line with what has been stated in the contract and the code of practice, then the employer is capacitated to resort to the appropriate measures to hold an employee liable to his or her actions. The dismissal of an employee shall be decided through a fair procedure. On the one hand, employees may claim unfair dismissal if employers do not follow a fair procedure. Only employees, who have been with the company for a minimum of one year, are eligible to claiming damages from unfair dismissal (McDermott Will and Emery, 2011). The claim for unfair dismissal will not be honored if the dismissal will not be done approaching the termination of a fixed term contract (Essery, 2009). A dismissal is deemed lawful, when it has been done due to just reasons and when there has been neglect on the part of the employee in performing the responsibilities (Royden, 2005). Fair dismissal takes place if it had been decided based on “employee capability, employee conduct, illegality (e.g. a driver whose driving license is revoked), redundancy, retirement, and other substantial reasons,” which are acceptable enough to substantiate the dismissal (McDermott Will and Emery, 2011). Diversely, since it involves providing monetary compensation to damages, many aspects of a scenario have to be considered when it comes to the law of tort (Tort Law, n.d.; L. Edwards, S. Edwards, and Wells, 2012, p. 11). The areas regarded by tort law takes into account a breach of duty that has been bound by civil law (Tort Law, n.d., p.13). Tort law necessitates the fulfillment of an obligation not only to the contracting party but to “people in general” (Tort Law, n.d., p.2). Hence, it may not be as simple as a mere agreement, for it does not only involve the contracting parties, but also the people whom the contracting party has an obligation. In English courts, careful consideration of cases that have allegedly violated tort law is crucial not to allow the filing of cases that are not actually subject to the said law (Tort Law, n.d., p. 3). The element of fault is crucial to justify that a violation of tort had been committed. One of this is negligence. Negligence takes place when there had been a failure in expressing due diligence that resulted to harm, even without the intention of doing such (Tort Law, n.d., p. 3). Application of Law Harry, a ten year old pupil at St. Botolphs, gashed his leg for running toward the school. He was assisted by Mrs. Tourniquet, a biology teacher because there was no nurse during that day. To make the long story short, Mrs. Tourniquet treated the wound, although, it was not her responsibility and without the permission of her superiors. Mrs. Tourniquet’s actions may justify the decision of the school governors because she did not follow the agreement between her and the school management. First, she was not hired as a nurse, and second, although she was a nurse before, she was not authorised to provide nursing assistance to the pupils. Mrs. Tourniquet may use as a defense her right to due process, where dismissal shall be decided subsequent to a fair procedure. In addition, she may argue that she has no obligation to the aggrieved party (the pupil Harry) because she did not intend to harm the boy. Nevertheless, because her misconduct is evidenced by the present condition of the aggrieved party, she may still be subject to dismissal. The main point of substantiating the school’s governor’s dismissal is negligence. However, Mrs. Tourniquet may also argue that the school had also become negligent since they had not made sure that a nurse would be available during school hours. There was negligence on the side of the school management because they were unable to make sure that pupils be given proper medical attention, when accidents occur. If Mrs. Tourniquet will use this as a defense, it does not mean that she will not be held liable, but at least the parents of the child may sue the school, and not only Mrs. Tourniquet to demand damages. Certainly, Harry or his parents may demand damages first from the school because it was their obligation to look after their child. If only there was a nurse during the time of the accident, Harry’s leg may have not been amputated, and Mrs. Tourniquet will not be provoked to do anything that is beyond her responsibility as a biology teacher. Based on tort law, the school does not only have an obligation to its employees, but also to the pupils who were enrolled by their parents knowing that the school will serve as their second home. Conclusion Dismissing Mrs. Tourniquet does not exempt the school from the obligation of providing monetary compensation. The dismissal may not be justified by Mrs. Tourniquet’s wrongdoings, but it is a learning experience for education institutions in not ignoring the possibility of accidents taking place at any point, and at any day. To conclude, Harry may demand damages from the school. Mrs. Tourniquet is still likely to be dismissed for her negligence and misconduct. References Essery, D., 2009. The employment act 2008. [Online] {Updated May 2005) Available at: http://www.insights.org.uk/articleitem.aspx?title=The+Employment+Act+2008#Dismissal [Accessed 16 Dec. 2012]. Hardy, S., 2011. Labour law in Great Britain. The Netherlands: Kluwer Law International. Edwards, L. Edwards, S. & Wells, P. K., 2012. Tort law. 5th ed. Clinton Park (NY): Delmar/Cengage Learning. McDermott Will and Emery. 2011. UK employment note: managing a fair dismissal. [Online](Updated 14 July 2011) Available at: http://www.mwe.com/info/news/wp0711b.pdf [Accessed 16 Dec. 2012]. Parissis, C., 1999. Enforcing EU employment law in the UK : the pending directives on individual labour law and the consequences of their forthcoming implementation. Manchester: The University of Manchester Institute of Science and Technology. Royden D., 2005. Dismissal Procedures. [Online] (Updated 2005) Available at: http://www.roydens.co.uk/content32.htm [Accessed 16 Dec. 2012]. Tort law: an introduction. n.d. [Online] Available at: http://catalogue.pearsoned.co.uk/assets/hip/gb/hip_gb_pearsonhighered/samplechapter/1408286378.pdf [Accessed 16 Dec. 2012]. Additional Reference Employment of Act of 2008 Read More