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Flighty may have a claim for both unfair and wrongful dismissal. In order to bring these claims there are certain requirements. For a wrongful dismissal claim Flighty must simply show that he was dismissed and that this was wrongful, however for an unfair dismissal claim she must show that he has been dismissed, that he qualifies for the right to claim for unfair dismissal, that the Bossman Ltd did not have a fair reason and that if the Bossman Ltd did have a fair reason that it was implemented fairly. Will do not know whether or not Flighty will be a qualifying Bossman Ltd as we are not told exactly how long he has been employed by the company but if it is more than one year that he has worked for the company he will qualify.

In order to establish either claim there is a requirement that Flighty should establish that he was dismissed as opposed to leaving. Where the employee commits a repudiatory breach of contract, the elective theory holds that the contract is only terminated once the employer, as the innocent party, has accepted the breach. Since the contract is ended by the employer, there is a dismissal for the purposes of section 95(1)(a) of the ERA 1996. As the employee has committed a serious contractual breach, the Bossman Ltd may not find it difficult to establish that there was a potentially fair reason for the dismissal and that it acted reasonably in the circumstances, but this does not inevitably follow.

A more effective way of protecting the Bossman Ltd in these circumstances is the idea of self dismissal but this doctrine is of doubtful validity. In Gammon v J C Firth Ltd it was suggested that employees who walked out of their employment in the course of a wildcat strike had thereby dismissed themselves, and in London Transport Executive v Clarke Lord Denning MR argued that the same reasoning should apply to a case where the employee too seven weeks' leave of absence without permission.

According to Templeman LJ the acceptance by an Bossman Ltd of repudiation by a worker who wishes to continue his employment notwithstanding his repudiatory conduct constitutes the determination of the contract of employment by the employer. However, his Lordships distinguished the situation where the employee walked out without wishing to continue the relationship of employment; here, the Bossman Ltd accepted legislation could apply only if there was a constructive dismissal, in the sense that the employee was responding to a repudiatory breach by the employer.

Conduct of the employee who evinces an intention not to carry on with the relationship of employment may be regarded as terminating the contract of employment, according to the automatic theory. Such conduct may be regarded, in effect, as a form of resignation; but the conditions for drawing such an inference is strict.

Therefore on the basis of the information that is provided to us it would seem that either Bossman could claim that Flighty resigned or Flighty could argue that he was unfairly dismissed and that these were words that were said in the heat of the moment.

Whether the words uttered by Flighty and the conduct he displayed by walking out amount to dismissal in a given case depends in part upon the intentions of Flighty and in part upon the reasonably understanding of Bossman & Co:

the test which has to be applied in cases of this kind is along the lines, Were the words spoken those of dismissal, that is to say were they intended to bring the contract of employment to an end? What was the employer's intention? In answering that a relevant, and perhaps, the most important question is how would a reasonable employe[r], in all the circumstances, have understood what the employe[r] intended by what he said and did?

This test related to words uttered by an employer however the test is equally applicable to words uttered by an employee. No formalities are required by law for an employee to resign his or her employment. Unless it can be construed as a constructive dismissal which, requires the employee to resign in response to a repuidatory breach of contract by the employer. The question is therefore whether or not Flighty meant to bring the employment contract to an end. One party cannot rely on undisclosed intention which the other party could not reasonably have ascertained; but if both parties subjectively understand the contract to have been terminated, the reasonableness of their views as irrelevant. The court may also construe the words used by reference to their accepted or customary meaning in the trade in question.

Where words are uttered in the heat of the moment, the tribunal ought to be careful to ensure that what has taken place really is a dismissal or conversely, a resignation, and not merely some words uttered for a particular reason which everybody quite understood were little more than abuse or something of that sort. However some words are sufficiently unambiguous as to leave nobody in any doubt as to their meaning, even when they are spoken in anger. Where there is ambiguity as is the situated on here then If one is concerned with an immature employee, or decisions taken in the heat of the moment, then what might otherwise appear to be a clear resignation, should not be so construed. In these special circumstances, a reasonable period of time should be allowed to lapse and if circumstances arise during that period which put the employer on notice that further inquiry is desirable to see whether the resignation was really intended and can properly be assumed, then such inquiry is ignored at the employers risk.

On this analysis it would seem that Flighty did not resign and therefore the question remains as to whether or not he was wrongfully or unfairly dismissed.

To establish a claim for unfair dismissal there in essence two elements, the first is procedural and the second substantive.

If Flighty decides to bring a claim for unfair dismissal to the employment tribunal the question of whether the employer acted reasonably in treating as sufficient the reason which was the basis for the dismissal. The emphasis on the employer's conduct means that the substantive justice of the dispute is, by and large, a secondary consideration. As Viscount Dilhorne said in W Devis & Sons Ld v Atkins section 98 (4) directs the tribunal to focus on the conduct of the employer and not on whether the employee in fact suffered any injustice. Moreover the employer's conduct will be judged not by reference to the nature of the right of the employee which might have been infringed, but by reference to the standard set by a notional reasonable employer. The relevant principles were summarised by Browne-Wilkinson J on behalf of the EAT in Iceland Frozen Foods Ltd v Jones:

in judging the reasonableness of the employer's conduct an [employment] tribunal must not substitute its decision as to what was the right course to adopt for that of the employer - in many , though not all, cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view, another may quite reasonably take another; the function of the [employment] tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonably employer might have adopted

As the statue directs attention to the employer's conduct rather than to the overall fairness of the outcome and as we are not made aware of the disciplinary procedure within the company, a most importance source of the employer's obligation is the ACAS Code of Practice on Disciplinary and Grievance Procedures.

The code suggests that oral warnings are appropriate for minor offences, if the offence is more serious a formal written warning, setting out the nature of the offence and the consequences of disciplinary action, should be given. In the even of repeated misconduct a final written warning may be necessary. However in a case of gross misconduct which, if confirmed on investigation, would be sufficient to justify dismissal, failure to give a warning may not in itself render a dismissal unfair.

If it is concluded that this offence is a serious offence and warrants a full disciplinary investigation and proceedings, suspension with pay is recommended if the case needs to be investigated before a hearing is convened.

The Code suggests that [b]efore a decision is reached or any disciplinary action taken there should be a disciplinary hearing at which workers have the opportunity to state their case and to answer the allegations that have been made. Wherever possible the hearing should be arranged at a mutually convenient time and in advance of the hearing the worker should be advised of any rights under the disciplinary procedure including his statutory right to be accompanied.

Grievance procedures are defined by the Act as hearings which concern the performance of a duty by an employer in relation to a worker. The Code, while indicating that [m]ost routine complaints and grievance are best resolved informally in discussion with the worker's immediate line manager suggests that employers should have in place a formal grievance procedure under which grievances can be heard, ultimately, before a senior manager. Once a formal hearing of this kind is reached, the Code suggests that the statutory right to be accompanied is triggered. For all but the smallest organisation, the Code indicated that at least one further stage of hearings, and possibly two, should be put in place, at each of which the worker would have the right to be accompanied.

The final step then should be either disciplinary transfer or disciplinary sanctions without pay if, in either case, the contract permits it, or dismissal, according to the nature of the misconduct, but [w]here a disciplinary suspension without pay is imposed it should not exceed any period allowed by the contract of employment. Therefore any penalty should be proportionate with the offence; the position and seniority of the employee; and the degree of wilfulness with which it is committed and should be reasonably consistent with the employer's previous practice in similar cases.

Therefore it would appear that despite the fact that Flighty walked out the conduct of his employers fails to comply with the minimum procedural requirements and it is likely if flighty went to an employment tribunal they would find that he had been unfairly dismissed. The employer cannot argue that, notwithstanding a breach of procedure, the dismissal was fair on substantive grounds , either because of facts which emerged later or because, viewed objectively, the failure to operate the procedure would have made no difference to the outcome, it is not the case that an employer can establish that a dismissal was fair by relying on matters of which he did not know at the time but which he ought reasonably to have known; if, moreover, the reasons shown appear to have been a sufficient reason, it cannot. Be said that the employer acted reasonably in treating it as such if he only did so in consequence of ignoring matters which he ought reasonably to have known and which would have shown that the reasons was insufficient

Therefore the test will be that the employer would only be able to dispense with procedure in a case where a reasonable employer would have decided to dismiss the employee summarily: there may be cases where the offence is so heinous and the facts so manifestly clear that a reasonable employer could take the view that whatever explanation the employee advanced it would make no difference. An employer may also legitimately dispense with a disciplinary procedure where, on the undisputed facts, dismissal was inevitable, as for example where a trusted employee, before dismissal, was charged with, and pleaded guilty to, a serious offence of dishonesty committed in the course of his employment.

Therefore considering this and the information available to us about the dismissal it would seem that the procedural fairness aspect of the case is straightforward and that Bossman & Co should have employed with one of the other procedures when dealing with the dismissal of Flighty. They should have either, if he was continually rude and his conduct was poor began disciplinary procedures following the ACAS guidelines or there own disciplinary procedure. If however this was Flighty's first offence a verbal or a first written warning would have been appropriate.

Returning to the second element of an unfair dismissal claim , the substantive reason for dismissal. There are five categories of potentially fair reasons for dismissal which are related to the individual's capability or qualifications for performing work of the kind he or she was employed to do; reasons related to the employee's conduct; redundancy; a statutory prohibition upon the employee continuing to work in the position that he or she holds; and some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held

In relation to conduct generally a one off incident is usually not enough to justify dismissal. However in certain circumstances may be sufficiently serious to allow the employer to dismiss summarily without warnings. Employment contracts often list examples of when such a situation will arise.

The employee owes an implied obligation to obey lawful and reasonable orders of the employer: this is a condition essential to the contract of service What is reasonable depends in part upon the substance of the other terms of the contract, and the employees job title and description, rank and professional status may also be relevant factors.

However one act of disobedience can justify dismissal only if it is of a nature which goes to show (in effect) that the servant is repudiating the contract

The employee has an obligation to co-operate with the employer. The term duty of co-operation is sometimes used to refer to an obligation which is implied into a contract to require each party to avoid taking steps to obstruct the other's performance. In the context of the contract of employment, this means that it is an affirmative obligation on the party of the employee to use his or her best efforts to ensure the efficient running of the enterprise. It also involves an obligation on the part of the employer not to break the trust and confidence on which this relationship rests.

For a wrongful dismissal claim Flighty must simply show that he was dismissed and that this was wrongful. In relation to Flighty's potential claim for wrongful dismissal, obviously the rules as discussed above in relation to whether a dismissal has taken place will apply here and it will be concluded for the purposes that he did not resign and that he was dismissed.

Therefore it should now be considered whether or not the dismissal was justified or whether it was in fact a breach of contract. In the Court of Appeal it has been held that a breach of contract will take place where the lack of good faith with which performance is carried out can render a breach of contract and that [t]here are many branches of the our law when an act which would otherwise be lawful is rendered unlawful by the motive or object with which it is done.

Ticehurst v British Telecommunications PLC a managerial employee was held to be subject to the duty of co-operation to exercise her judgement and discretion in giving instructions to others and in supervising their work faithfully in the interests of the employers. Her failure to sign an undertaking to work normally was held to amount to a breach of contract: a breach is committed when the employee does an act, or omits to do an act, not in the honest exercise of choice or discretion for the faithful performance of her work but in order to disrupt the employers business. The most significant aspect of this case is that the only source of the breach was the employee's refusal to sign the undertaking.

In Cresswell v Board of Inland Revenue in which Walton J held that employees were acting in breach of contract by refusing to cooperate with the introduction of the new, computer-based technology: an employee is expected to adapt himself to new methods and techniques introduced in the course of his employment, subject to an obligation on the part of the employer to offer retraining where esoteric skills were involved which it would not otherwise be reasonable to expect the employee to acquire

It is likely that there will be a breach of contract and that Flighty may well have a claim for wrongful dismissal. This will of course depend on the amount of contractual notice that is required to be given by either side to end the contract. In the absence of any information available to us to assess this it is assumed that this will follow statutory guidelines.

Therefore in conclusion it would seem that Bossman & Co should have not accepted that the words spoken by Flighty were words of resignation and should have contacted him to reaffirm the position rather than dismiss him. Even if this action did amount to conduct that would have warranted dismissal, .i.e. because of previous incidences the correct dismissal procedure should still have been followed even if this meant a disciplinary hearing were the ultimate outcome would have been the same.