A Legal Framework for Managers

The Capable Manager

The Open University

Publisher: The Open University, 1996

ISBN: SUP30803-7

Synopsis:

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Table of Contents:

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• Session 1 The Legal System
• 1.1 Common Law and Civil Law
• Common law system
• Civil law system
• Differences between civil law and common law
• Different meanings of civil law and common law
• 1.2 The Sources of Law
• Legislation of the European Union
• Primary legislation
• Secondary legislation
• Decisions of the European Court of Justice
• Legislation by the UK Parliament
• Uses of legislation
• Types of legislation
• Interpretation of statues
• Case law, governed by the doctrine of binding precedent
• Distinguishing
• Difference between a ruling of law and a finding of fact
• 1.3 Classification of Law
• Criminal law
• Civil law
• Law of contract
• Law of tort
• Commercial law or mercantile law
• Compoany law
• Employment law (or labour law or industrial law)
• Land law
• Terminology
• Relationship between civil and criminal law
• Proving your case
• Compensation in a criminal case
• 1.4 The Courts
• The structure and operation of the civil courts
• The County Court
• The High Court
• Court of Appeal (Civil Division)
• House of Lords
• Tribunals
• Arbitration
• Costs
• Criminal courts
• Types of criminal offence
• Magistrate's Court
• Crown Court
• House of Lords
• 1.5 Legal Advice and Assistance
• 1.6 Where to Find the Law
• Where to find statues
• Where to find law reports
• Session 2 The Supply of Goods and Services
• Introduction
• 2.1 The Law of Contract
• What is a contract?
• Formal and informal contracts
• Claims for restitution
• The practical use of the law of contract
1. Damages
2. Rescission
3. A decree of specific performance
4. Injunction
5. Declaration
6. Rectification of documents
• Importance of the law of contract
• General principles and specific contracts
• Have we got a contract?
• Has an offer been made?
• Has an offer been accepted
• Retrospective acceptance and contracts by conduct
• Certainty of terms
• Standard form contracts
• Battle of the forms
• What are terms?
• Relative importance of terms
• The price or other consideration
• Price variation clauses
• Renegotiation of contracts
• Waiver of contractual obligations
• Part-payment of debt
• Payment under the contract
• Late payment and interest clauses
• Late performance or non-performance
• Frustrated contracts
• Liability for loss or damage
• Reservation of title
• 2.2 Liability for Unsafe or Defective Goods and Shoddy Workmanship
• Civil liability
• The contracting party
• The third party as plaintiff
• The Consumer Protection Act 1987
• Who is liable?
• Which courts have jurisdiction?
• Game and produce
• What is a 'defect' in goods?
• Defences
• Damages that gives rise to liability
• Contributory neglience
• Exemption of liability
• Insurance
• Terms implied into a contract for the supply of services (including financial services)
• Implied terms as to care and skill
• Criminal liability for unsafe goods
• Enforcement provisions
• Other Acts dealing with the safety of goods
• 2.3 Liability for Incorrect Statements
• Civil liability
• Adevrtising puff
• Express term of the contract
• Implied term as to correspondence with description
• Mere representation
• Criminal liability for statements
• The Trade Description Act 1968
• Exemption clauses
• Incorporation into the contract
• Defeating an exemption clause
• Statutory provision
• Non-statutory rules aimed at controlling exemption clauses
• Third parties and exemption clauses
• Session 3 Employment Law
• Introduction
• Background ro individual employment law
• Rights given by legislation in the 1960s and 1970s
• Significance of Europe
• Continuous employment
• Background to collective employment law
• 3.1 The Machinery of Employment law
• The Advisory, Conciliation and Arbitration Service (ACAS)
• Bringing an individual claim
• Certification Officer
• Central Arbitration Committee
• Commissioner for the Rights of Trade Union Members
• 3.2 Contract of Service or Contract for Services
• The tests employed to distinguish a contract of service and one for services
• Control
• Entrepreneurial involvement
• The fundamental test
• Mutuality of obligation
• Special cases
• 3.3 The Contract of Employment and its Contents
• The principles of the law of contract, as they apply to the contract of employment
• 'Offer' and 'acceptance'
• Consideration
• Factors which render the contract void or voidable
• Variation of the contract
1. By agreement of the parties
2. Unilateral variation
• The terms of the contract of employment
• Sources of the terms of employment
• Express terms
• Written particulars of employment
• Content of written particulars
• Disciplinary and grievance procedures and contracting out
• The effect of the statutory statement in relation to the contract of employment
• Collective agreements
• Incorporation of terms of collective agreement into individual contracts
• Provisions unsuitable for incorporation
• Conflicting collective agreements
• Incorporation and industrial action
• Work rules, etc.
• Employer's practice (often referred to as 'custom and practice')
• Trade custom or usage
• Terms implied by common law
• Duties of employer
• Duties of employee
• Terms implied by the court
• Restraint clauses in contracts of employment
• Restraints by outside bodies, such as Trade Associations
• 3.4 Termination of Contract of Employment
• Definition of dismissal for the purpose of unfair dismissal or redundancy
• Termination of the employee's contract by the employer
• Fixed-term contract not renewed
• Termination by the employee where he or she is entitled to terminate the contract because of the conduct of the employer
• Dismissal at common law
• Contracts terminable by notice
• Fixed-term contracts
• Contracts terminable only in a particular manner or for a particular cause
• No dismissal
• Where the employee resigns
• Where the contract is for the completion of a particular task
• Where the contract is frustrated
• Periods of notice
• 3.5 Redundancy Payments
• Definition of 'dismissal'
• Limitation period (i.e. period within which claims must be started)
• Definition of 'redundancy'
• Closure of the business
• Dimnished requirement for workers of a particular type
• A Closure of the business or a diminished requirement for workers of a particular type, at the place where the employee was employed
• 'Bumping'
• Re-employment or offer of re-employment
• The offer
• Refusal of alternative employment
• Trial period in new employment
• Consultation with a recognised trade union
• Meaning of 'establishment'
• The meaning of 'recognised union'
• Information to be given to the union
• Special circumstances
• Protective award
• Notification of the Department of Employment
• Calculation of the redundancy payment
• Dismissal during period of notice
• 3.6 Transfer of Undertakings
• Dismissal in connection with a transfer
• Dismissal for an economic, t3echnical or organisational reason
• Relationship between the Regulations and the pre-existing law
• What is an 'undertaking'?
• What constitutes the transfer of an undertaking or business?
• Time of dismissal
• Non-acceptance of the transfer by the employee
• 3.7 Unfair Dismissal
• Wrongful dismissal
• Present day relevance of wrongful dismissal
• Qualification for unfair dismissal
• Exclusions
• What must be proved?
• The fact of dismissal
• The reason for the dismissal
• Acting reasonably
• Dismissal for the reason given — 'band of reasonableness' test
• Dismissal for lack of capability due to incompetence
• Dismissal because of incapability due to ill health
• Dismissal related to the conduct of the employee
• Dismissal in the belief that the employee has been guilty of misconduct
• Criminal offences committed away from the workplace
• Unfair redundancy
• 'Some other substantial reason'
• Was the dismissal handled fairly?
• Fair procedure in cases of incompetence and misconduct
• Where a consultation or warning would be useless
• Procedural rights under a contract
• Fair procedure in ill-health dismissals
• Is there a need to offer alternative employment?
• Occupational sick-pay schemes
• Spent convicttions
• Unfair dismissal and industrial action
• Remedies for unfair dismissal
• Reinstatement or -re-engagement
• Procedure for ordering reinstatement or re-engagement
• Non-compliance with an order for reinstatement or re-engagement
• Compensation
• Basic award
• Compensatory award
• Additional award
• Special award
• Interim relief
• 3.8 Discrimination in Employment
• Discrimination against disabled people
• Age discrimination
• Racial discrimination
• Sex discrimination
• The relationship between the Equal Pay Act and the Sex Discrimination Act
• 3.9 Equal Pay
• The equality clause
• Meaning of 'same employment'
• Selection of a man with whom comparion may be made
• Like work
• Work rated as equivalent
• Work of equal value
• The effect of an existing job evaluation study
• Defence to an equal pay claim
• Market forces and collective bargaining as genuine material factors
• Collective bargaining
• Market forces
• 'Red circling'
• Wage scales
• Part-time workers
• Retirement benefits
• 3.10 The Race Relations Act 1976 and the Sex Discrimination Act 1975
• Discrimination under the Acts
• What is discrimination?
• Direct discrimination
• Discrimination on the ground of pregnancy
• Proving that the discrimination was on the ground of race or sex
• Indirect discrimination
• Requirement or condition
• Smaller proportion of women or members of a racial group able to comply
• Justification irrespective of sex or race
• Discrimination by way of victimisation
• Discrimination against married persons in the field of employment
• Discrimination in employment
• Sexual or racial harassment
• Advertisements
• Exceptions
• Private households
• Sex or race as a Genuine Occupational Qualification (GOQ)
• Discriminatory training
• Positive discrimination and positive action
• Remedies
• Action by an individual
• Action by the Equal Opportunities Commission or the Commission for Racial Equality
• Formal investigations
• 3.11 The Employee’s Wages
• Itemised pay statements
• Sick pay
• Wages during lay-off and short-time working
• Guarantee payments
• Circumstances in which the payment is due
• Amount and extent of entitlement
• Application to an Industrial Tribunal
• Exemption orders
• Suspension on medical grounds
• Deductions from wages
• Exceptions/li>
• Special rules relating to retail employment
• Complaints of unlawful or excessive deductions or payments
• 3.12 Maternity Rights
• A dismissal on the ground of pregnancy or a reason connected with pregnancy or with childbirth is automatically unfair
• The right to time off work for ante-natal care
• The right to statutory maternity pay
• The right to maternity leave
• The right to return to work
• Modifications of the basic right
• Procedure for the exercise of the right
• 3.13 Miscellaneous Employment Rights
• Right to paid time off
• Right to unpaid time off
• Remedies
• Jury service
• Access to medical records
• Session 4 Health and Safety at Work
• Introduction
• 4.1 Criminal Liability for Health and Safety at Work
• Machinery of enforcement
• Inspectors
• Powers of inspectorate
• Improvement Notices
• Prohibition Notice
• Appeals
• Criminal liability
• Prosecution of offences
• Penalties
• Persons to be prosecuted
• Institutions operated by the Crown
• Information
• Safety representatives and safety committees
• Duties under the HASAWA
• General duties of the employer to his or her employees
• General duties of employers and the self-employed to persons other than their employees
• Duties as a controller of premises
• Duties of a manufacturer regarding articles and substances for use at work
• Duties on employees
• Duty not to interfere with or misuse things
• Duty not to charge employees
• Regulations
• Management of He4alth and Safety at Work Regulations
• The Workplace (Health, Safety and Welfare) Regulations 1992
• Provision and Use of Work Equipment Regulations 1992
• Other Regulations
• Reporting of accidents and diseases
• 4.2 Civil Liability for Health and Safety at Work
• Who can be sued?
• Vicarious liability
• Breach of contract
• The tort action
• Breach of statutory duty
• Advantages of breach of statutory duty action over an action for neglience
• Does breach of the statutory duty give a right to bring a civil action?
• Defences
• The tort of neglience
• What must be proved
• Conformity with accepted practice
• Later acts of third parties
• Later acts of the plaintiff
• Occupiers' Liability Act 1957 and 1984
• Lawful visitors
• Trespassers
• Defences to the torts of breach of statutory duty, neglience and occupiers' liability
• Damages
• Living plaintiffs
• Damages on death