Law for Business Manager
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There is a substantial number of laws relevant to business elements. Business laws assist the companies with giving security and conviction to the association and help them to determine the debate better. In the accompanying report, a contextual analysis will be talked about, wherein four unique situations will be examined. Each case will apply an alternate segment of law. The primary case will discuss the essential contrast among portrayal and legally binding term. The following case will expound unjustifiable rejection of a representative from an association. The third case clarifies the fundamental obligations of an individual from a leading body of executive, and the last area features the tort law and the rules that choose the remuneration on account of tort.
1. Explain the meaning of a ‘representation’ and how a mere representation can be distinguished from a term of a contract.
In the layman language, there are certain terms that are often used interchangeably. However, in the field of law they have different meaning. These include ‘representation’ and ‘term of contract.’ The former is the statement that is usually made by an individual while making a deal and prior to signing the contract that persuade a person’s willingness to buy a product and instigate a person to accept the risk. According to, “representation” is some sort of a statement or demonstration of fact which is not a part of contract’s terms but it can result in obligation or might be considered misrepresentation. A representation can have different form. In majority of cases, the statement is given verbally or written format. Talking about the ‘contractual term’ is a type of provision that makes a contract. These are usually formed at the time of negotiating a deal between two or more parties. If the agreed provision stated in the contract is not followed or does not accomplished, then the English Law System has given the innocent party a right to file a case in the court for contract breach. However, failing to address the representation cannot result in contractual obligation but it can be considered under misrepresentation for which the defaulter can be sued in the court.
Different researchers and law experts have their own understanding of representation. For instance, Stainbackand Tomaskovic-Devey, (2012) argued that it can be formal or informal statement that is made to persuade the customer to sign a contract with the seller and it doesn’t consider as a part of a contract. If in any case, the representation turns out to be untrue, then the innocent party can claim for the financial damages occurred to him/her. In their research paper, Furmston, et.al, (2018) talked about four distinguishing factors that can differentiate between contractual term and representation. These include:-
Parole evidence rule: In English Law, every written statement will be considered as the contractual term, whereas the verbal statement will be considered usually a representation.
Relative expertise:It the dealer possess the higher knowledge and information regarding a product than the buyer, then any statement given by him in context of a product will be considered as a contractual term. Conversely, if the buyer possess higher knowledge or expertise about the product, then the statement will be considered as representation. An example of this particular scenario is Dick Bentley v Harold Smith Motors.
Significance of Statement and Reliance:If in a case, the buyer has relied completely on the statement of the dealer, then according to the law, it would be considered as a term in the contract rather than a representation. This occurred in the case of Bannerman v White, wherein the claimant trusted the dealer and bought a faulty product. The statement was considered as a contractual term by the court.
Timing:According to the English Legal System, the larger the time span between the representation and signing a contract, the higher the probabilityof a statement to be considered as representation. This occurred in the case ofEcay v Godfrey, wherein the time lapse between the statement and contract signing was high. This resulted in the statement to be declared as a representation.
Looking in the case study in which Monica trusted the statement made by the dealer prior to signing the contract. She completely relied on the expertise of the dealer who has a higher knowledge and expertise of cars in comparison to Monica. The case should consider the statement of the car dealer that the car is the world’s best car of this era as a contractual term rather than representation. One thing to note here is that this particular case is a bit unique as the contractual term is made via verbal communication between two parties. If Monica go to the court, then she would have better chance of winning the lawsuit and the defaulter will have to pay for her damages in monetary terms.
2. What are the grounds in which dismissal from employment would be unfair at law, which Monica should explain to the board of directors?
In the case study, the board of directors wants to fire an employee and in this regard, they want to have a discussion with the HR manager. Being a person who is responsible for hiring and firing of personnel, Monica is well aware of the fact that in the UK, there are some rules and regulations that are to be followed before cancelling the employment contract of any employee. The organisation cannot fire any employee without giving him/her a minimum of 7 days’ notice period if the employee is working for a month or more. The Employment Act 2002 obligates the company to give a notice period to the employee. In addition to this, immediate suspension from the job would be considered as an unfair dismissal. The board of directors should be made clear what the word ‘unfair dismissal’ means and what legislation should organisation follow regarding hiring and dismissal of an employees. Unfair dismissal in English Legal System is defined as the termination or suspension of the employment of a worker by the organisation without any fair bases of doing or without giving the employee a fair warning. The employee has the right to be given a notice under the section 98A of Employment Act of 2002. If the organisation did not follow the procedure defined in the act for terminating the contract of employment with the employee, then this would also be considered as the unfair dismissal (Collins, et.al, 2012).
For every HR Manager, firing an employee is a troublesome task as they have to give a valid and a strong reason for their action. The Employment Act 2002 also protects the rights of the business entity operating in the UK in order to take measures to maintain the healthy working environment. The “Section 98” of the Act has enlisted some factors based on which an employee can dismiss any employee’s contract. These have been discussed below (Banker, et.al, 2013):-
Capabilities: Lying in the resume about any skills or desired competency can result in dismissal in the future. Employees should be eligible for a job role and if he/she turns out to be ineligible, then organisation has the right to fire him/her.
Professional Conduct: Each and every member working in the organisation has to show respect to each other while working in order to maintain the healthy working environment. The right attitude and behaviour is important in the corporate environment. Employees should not show abusive attitude, racist behaviour, never indulge in stealing confidential business information and data. In addition to this, if any employee persistently coming late to office, then organisation has the right to dismiss him/her on this misconduct.
Redundancy:the redundancy is one of the major issues of mass dismissal in the corporate world. Hence, the government is very concerned and strict against such dismissal. The Redundancy Payments Act 1965 ensures that workers get the redundancy pay in case they are fired due to redundancy (Poole, et.al, 2017).
Illegal Activities: if any employee breaks the law while working or off the duty, then organisation has the right to terminate the employment contract. Organisations can put this clause in the contract and the same should be conveyed to the employees. Usually, organisations take such measures to protect its image in the market.
Apart from the aforementioned reasons, there are other factors also that can force an organisation to fire an employee. For instance, if an employee misbehaves with a client or customer, or he/she refused to cooperate with other employee or team members, or they refuse to accept the newly implemented changes in the organisational structure or ways of doing work, or indulge in any theft activities, or harm the property of the company, then the company has the right to fire them (Banker, et.al, 2013).
Monica should first determine the reason behind board of director’s decision of dismissing that particular employee. She should first assess whether the reasons come under any of the aforementioned criteria of Section 98 of the act. If the reason given by the board is legitimate, then she should warn the employee regarding the same. If the behaviour of the employee or conduct remains the same, then she should give a notice to the employee mentioning that the organisation has decided to terminate his/her employment contract and they should look for another job. If the reason given by the board is illegitimate, then she should explain the board that such dismissal would be unfair and organisation might face serious consequences for doing so.
3. What are the main duties governing company directors that Monica should explain to the new members of the board?
Every new member should be made aware of the functioning of the organisation.For that purpose, the concept of induction was introduced. It is the duty of the HR manager to introduce the newly elected member of the board of director. The HR manager is fully responsible to carry out the new employee’s induction, wherein a thorough introduction of the job profile, business functioning, team’s working domain, organisational policies, rules and regulations, and various sectors of business. Explaining the job role can help employee in doing his/her work in a better way as he/she has a better understanding of his/her responsibilities. An HR should give a brief knowledge of company’s vision and mission. This helps in the formulation the goals and objectives of the company and planning strategies to achieve them. The role of the director has been clearly explained under the Company Act 2006. Monica should make sure that the newly elected member should understand each duty and follow them. The basic and first rule for the director is to act together as board. The major general dutiesare explained below (Adams, et.al, 2012):-
Acting within Powers:The first and fore most duty of the newly elected member of the board is to act within his powers. It is important to respect the organisation’s constitution and policies. The constitution of an organisation comprises resolution and articles of association.
Promoting the Success of organisation:It is the duty of the board of directors to act in the good faith of the organisation and promotes its success. The act has also defined the meaning of the term ‘success’ which means long-term rise in value but it depends on the member to decide their course of action in the good faith of the company. It is important for the director to make decision while considering the likely ramifications of the any long-term decision. The decisions made by the member should maintain the reputation of the company and should promote the community and environment welfare.
Exercising Independent Judgement:The Act has given every director a right to act independently and take right decisions of their own. However, this cannot stop any member to stop acting in accordance with the organisation’s constitution or the policies governing their job.
Exercising Reasonable Skills, Care, and Diligence:the member of board has to exercise the knowledge, expertise, skills, and competencies in order to provide benefits to the company. The standard of the director can be measured by making use of subjective and objective yardstick (Adams, et.al, 2012). All the member of the board of directors are expected to carry out the organisational functions while employing the general knowledge, experience, and knowledge.
Avoiding Conflicts:The member should take measures to avoid any situations or actions or decision that may result in conflict. It is the duty of member to determine any sort of information, factor, property, and opportunities associated with organisation regardless of the fact that organisation could take advantage of it or not.
Acting Fare and Being Loyal with the Organisation:The board of directors should be loyalto the company and should act fairly. The member should avoid taking benefits from any agent or mediocre or third party. If this happened, then such inactions will result in conflicts of interest.
Declaring Interests in Existing and Proposed Transactions: It is important for the director to declare the extent and nature of the transaction of a company. If the transaction is in proposed stage, then the declaration should be done prior to its commencement.
The aforementioned duties are the quintessential elements for the working of a board member. It is important for the newly elected member to understand them thoroughly and abide by the constitution of the company. As an HR manager, it is the duty of Monica to check whether or not the member is following his/her duties as discussed above.
4. Explain the principles governing the award of damages in the Law of Tort. In what ways may damages be limited?
Law of Tort is one of the significant laws in the English Law and is widely debated by the lawyers and other law experts. The law of tort is the domain of law that safeguards people from inactions or bad deeds of others. Basically, when a person does a tort, he/she actually breaks a civil law (Halikiopoulouand Vasilopoulou, 2018). If a person gets injured by someone’s action, then the English law has given him/her a right to claim compensation from the defendant who commits tort. The ultimate aim of the tort law is to make sure that the defaulter pays for the damage he/she has caused to the claimant. There are different types of the torts, such as negligence, intentional torts, dignitary torts, property, etc. The events such as car accidents, slip and falls, medical malpractices, construction accidents, falling objects, etc., come under negligence tort as they take place negligently.
Talking about the principles that regulates the award of damages in the incidents of tort, there are three basic principles, namely principle of remoteness, mitigation, and causation. These have been explained below (PinoâEmhart, 2016):-
Principle of Remoteness:the doctrine of remoteness says that the injuries and damages should be of foreseeable variety. In case of negligence tort, once the injured person proved that the damages have been caused by the defendant and the latter party owes him a duty of care, it is important for the claimant to prove that the damage is not remote. This happened in the case of Doughty v Turner Manufacturing Company
Principle of Causation:For demonstrating the principle of causation in the tort law, the claimant has to prove that the loss incurred took place only because of the culprit and it would have not taken place if the defendant has taken due care. Usually, the ‘but for test’ is used in the tort cases. But, there is one major limitation of this method. It does not work in those cases where the loss took place due to more than one factor.
Principle of Mitigation:This principle emphasises more on minimising the loss and taking measure to avoid those actions that resulted in the loss. Every risk or loss can be avoided from the claimants’ ends if they would have taken due care. It is the ultimate duty of the claimant to minimise the effect of loss.
Looking into the matter give in the case study, wherein Joey got injured in a car accident while he was walking on the road. The car was been driven by Ross who is Monica’s brother. Both parties can be held responsible of the mishap occurred. Joey was a pedestrian and he should have walked on the pedestrian pathways. Only a patch of the footpath was under construction not the whole footpath. He chose to walk on the road. However, the major responsibility lies on Ross as he is driving a vehicle and hence he should have been more careful. He was not giving attention on the road and that resulted in the accident with Joey. Hence, Joey has a right to claim for the injuries and losses he has suffered.
This task helped in knowing the business law. The venture additionally centred around the different uncalled for grounds utilized by the business to expel the worker. The task examined about the obligations and duties of the top managerial staff. Concentration was given on the agreement law and the different terms identified with it like portrayal, conditions and guarantees. In the terms of the agreement, one gathering offers a proposition to other gathering. In the event that the other party acknowledges the offer, it turns into a guarantee. Next, when there is a trade of thought, where the agreement is formed. The last section explained the tort law. The standards which are administering the honor for harms under the tort law were likewise talked about. The tort law alludes to a common off-base.
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- Ecay v Godfrey 80 Lloyds Rep 286
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- Routledge v Mckay 1 WLR 615 Court of Appeal
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