Business and Employment Law
In the contemporary world, an individual person or business organization has to confront with different types of legal issues. However, the nature of obligations arising out from such legal issues differs across different laws. English legal system and its categorization into different branches of law is there to serve the different legal purposes. It is often argued that contract and tort law are similar in that both are part of the law of obligations; on the other hand, criminal law is part of public law and is therefore fundamentally different. Due to these differences and similarities, the implications of these three laws are of extreme importance for the societies in order to apply the appropriate law in a specific circumstance. The essay writing service tends to answer different aspects of these business employment laws focused on the fundamental similarities and differences between these laws. The discussion is enhanced through the examination of the relevant case laws.
Comparisons among Contract Law, Tort Law and Criminal Law
The argument raised in the introduction about the similar nature of the contract and tort laws and different nature of criminal law is absolutely true. The contract and tort law are based on voluntary obligation and these deal with the duty that has been breached on the other hand criminal law is different from these laws of obligation because of its mandatory obligation. For more enhanced reasoning, all the three laws are described below in detail along with practical evidences from the case studies.
Contract law is defined as the set of rule governing the contractual agreements between the business parties operating within a jurisdiction. The applicability of contract law is only made on the individuals or business merchants after they have entered into a contractual agreement. Contract law defines the duties, obligations, rights and penalties in case of contract breach. It can be examined that contract law is categorized as common law under English legal system. Practical example of contract laws include Sales of Goods Act, Mortgage contract, industrial agreements, and indemnity and guarantee contract, bailment contract and others. The practical example of the contract law case is Godley v Perry (1960) offers the analysis of the rule in the contract law. In this case, a boy named as Godley purchased a plastic catapult from a stationer Perry. The action results in the contract for sale of good that requires a seller to ensure that the good is fit for the purpose of the buyer. Godley used the catapult appropriately but it bust in his hands and injured his eye. The boy filed case under contract law and stated that the seller has not complied with his contractual obligations effectively.
The second branch of English Legal System is based on tort law. Tort law is categorized as civil law and is described as the set of rule governing the intentional violations and harm caused by one party to another party. In other words, tort guides the rules for situations of civil wrongs resulting in legal liability for the party committing the tortuous act (Steele, 2014). The sub-category of tort laws includes negligence, intentional torts, statutory torts, nuisance, defamation, and business torts. Liebeck v. McDonald's Restaurants offers a great example for the recent tort case. In this case, plaintiff was awarded $2.86 million due to 3rd degree burns in her pelvic region when she dropped hot coffee purchased from McDonalds on her lap. The tort liability arising out from this case was the duty of McDonalds to serve hot coffee according to industry standards temperature and present the coffee in safe and hardly firmed cups. Here there was no actual consent between the parties but McDonalds was implicitly required to look after the safety of its customers.
Contract Law and Tort Law As a Part of Law of Obligations – Reasoning
There is a strong relationship between the contract law and tort law because it is assumed that tort is helpful in defining the causes of actions that are not defined in the contract laws. One of the biggest similarities between the two is related with the breach of duties. In contract law, if the party were not able to make its promise or pay consideration on which the contractual agreement is based, the contract laws would set down remedy to breach. For example, a party contracted to deliver 100 Kg rice upon payment on specific date to another party through delivery but it is unable to make delivery will be said to entered into contract violations. Similarly, in tort cases when a civil party in unable to perform his duty causing harm to other person, the tort law would set down remedy for such negligence. For examples, a customer visiting shop when faces harm due to fallen product shelves on him can claim damages for personal injuries due to shopkeepers’ negligence in compliance of its duty to take care. It can be analyzed that in both contract agreement and tort agreement, parties are required to affected parties is entitled to damages (Harpwood, 2005).
On the other hand, the biggest difference between the contract law and tort law is related with the consent of parties. Contract law does not initiate the legal implications of the agreement when both the parties have not given their individual consents. In contrary, tort laws for their enforcement do not require individual consents from both the parties. Tort laws are normally based on the infringement made by one party in context of the safety, health, profit and privacy of the victims. The differences and similarities in the contract law case Godley vs Perry (1960) and the tort law case Liebeck vs McDonald (1994) further provides effective reasoning to believe the argument raised that although the claims under both laws are also required to be filed separately. However, it can be depicted that both the contract law and tort law are comprised of similar key aspects fundamentally driving the action of parties. These include relationship between the parties, nature of the obligation, causation and remoteness of damage, and the measure of damages.
In contrary to the above two laws, criminal law is totally a different branch of legal system and is obviously a public law. Criminal law are enforced in society by the government and regulatory to ensure that individuals living in the society are punishable for any crime done. Therefore, state leading to the police arrest and investigation based on the suspicion prosecutes crimes. Set of laws guiding the criminal acts are public in nature and are enforceable to everyone in the society. The cases under criminal laws are not associated with damages in breach of contractual obligations rather criminal law addresses indictments, accusations and criminal pleas and trials. Workplace violence and abuses are also counted under criminal law (Beaver, 1997).
Criminal Law as a Part of Public Law - Reasoning
In comparison to the contract and tort laws, criminal law is fundamentally different because it is developed by the parliament through penal court while the above two are created by the common and civil law courts. As a part of public law, criminal laws are basically based on strict liability and grade of offence as the person found guilty of criminal act might be dangerous to others, himself, and society at large in the future. Contract and tort laws do not consider immoral or criminal activities creating the risk for future harms. Rather these laws are concerned with the harm as a prerequisite to a remedy. Once the breach or violation in these two laws occurs, plaintiff can ask for damages as remedy. The public nature of the criminal law is the reason that it contains more severe sanctions than the tort laws or contract laws including compensation, imprisonment or hang-till-death warrants.
Criminal laws are reinforcement of the social norms between society and state while the contract and tort laws are reinforcement of contractual agreements between two parties only. This is the reason why upon commitment of crime, the state inflicts stigma and suffering on defendants while the courts consider damages for plaintiff to help the parties meet their obligations.
Thus, based on the research and discussion carried out above confirms the argument stated in introduction as true. It can be viewed that contract and tort are both parts of law of obligations while the criminal law is a part of public law. The key facts summarized in the discussion depicted that both contract and tort laws are created by courts to specify rule for successful reinforcement of contractual obligations in an agreement, whether explicit or implicit. Same aspects are important for creating an obligation. In contrary, criminal laws are governed by state or penal codes to ensure the society is not breaking social norms. The aspects of this law are based on society’s perception about moral and immoral acts.
Question 2: Case Study Analysis
Age discrimination is identified as critical business issue involved in the work and employability concerns. There are specific rules and regulations for reporting the employees grievance and complaints procedure related with the discrimination. In this case analysis, legal implications of a situation faced by an employee is critically analyzed in light of business employment laws and regulations. The solutions to the situations are given by outlining the action resulting from the complaint using the IRAC (Identification, Rule, Application and Conclusion) formula.
Identification of Issue in Sarah’s Case
Age discrimination of ageism is the concerned issues in Sarah’s case. Sarah was treated unfavorably and was not called for the final interview for the designer post despite of her excellent qualification. The reason indicates that company wanted a young aged designer. It is worthy to note down that employment advertisement has explicitly stated criteria for the inclusion i.e. not above 40 years. Sarah was 43 at the time of application. She was currently working at the part-time temporary positions and needed permanent job at MCK. However, John Barnsley - the Design Studio Manager did not select her and awarded the job to another young designer with less qualification.
Equality Act 2010 in UK defines that a person is protected from “age discrimination in all aspects of employment including recruitment, employment terms and conditions, promotions and transfers, training and dismissals”. The Act protects the individuals from all the direct discrimination and indirect discrimination. The Act and UK Employment Law 2006 both identify age as protected characteristic.
Part 2 – Chapter 1 – Section 5of Equality Act 2010 states,
_(1) _In relation to the protected characteristic of age—
_(a) _a reference to a person who has a particular protected characteristic is a reference to a person of a particular age group;
_(b) _a reference to persons who share a protected characteristic is a reference to persons of the same age group.
(2) A reference to an age group is a reference to a group of persons defined by reference to age, whether by reference to a particular age or to a range of ages.
Section 39 Clause 1 of the UK Equality Act states;
_(1) _An employer (A) must not discriminate against a person (B)—
_(a) _in the arrangements A makes for deciding to whom to offer employment;
_(b) _as to the terms on which A offers B employment;
Part 2 – Chapter 2 – Discrimination – Section 19 – Clause i states that
“A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's”.
The UK regulations do not offer a free reign to the employers for discrimination against the old age worker. Equality Act only justifies such discrimination when employer is able to justify his actions like for health and safety reasons.
The legal implications of Ageism can be in the form of employer’s grievance procedure or claim to an employment tribunal.
Employer’s Grievance Procedure
The first legal action against ageism in UK is to raise a written grievance procedure. It is worthy to note down that there is no formal procedure for grievance; however, it may apply to the specific grievance procedures formulated by different employers in UK. The procedure can help claimant to take disciplinary action against the person discriminating in employment.
Part 9 – Chapter 3 – Section 124 of the UK Equality Act (2010) states;
(a) make a declaration as to the rights of the complainant and the respondent in relation to the matters to which the proceedings relate;_ _
(b) order the respondent to pay compensation to the complainant;_ _
(c) make an appropriate recommendation” (UK Government Legislation, 2015)
From the legislation clause, it can be examined that the second legal action in ageism directed by UK legislation is the opportunity available to the discriminated individual to take his or her case to employment tribunal. The claim can be made within the three months from the date of discrimination.
Part 9 – Chapter 3 – Section 123 of the Equality Act states that,
“[F1Subject to section 140A] proceedings on a complaint within section 120 may not be brought after the end of—
(a) the period of 3 months starting with the date of the act to which the complaint relates, or
(b) such other period as the employment tribunal thinks just and equitable” (UK Government Legislation, 2015).
The steps taken by the employment tribunal includes:
· Hearing all the details of the case and identification of relevant discrimination
· Decision making about the rights of the claimants
· It can award compensation to the claimant. It is important to know that the tribunal has no upper limit for the compensation.
· The tribunal may recommend the employer to resolve the issue from their end (Wadham et al., 2012).
Application of Rule to the Issue
MCK must consider that Sarah has range of platforms to claim against the discrimination exercised against her by John Barnsley - the Design Studio Manager. Sarah can use _Section 39 Clause 1 of the UK Equality Act 2010 _in proving that her interviewer has exercised discrimination in both, for setting out terms of the employment as well as in making arrangement for deciding whom to offer the employment. UK Equality Act protects Sarah from ageism. MCK did not fulfill the exceptions criteria where discrimination in recruitment can be based on health or safety issues. Sarah appears to be fit medically, physically and skillfully for the job. Her age of 43 years cannot be used to discriminate her. Sarah can claim her rights against indirect discrimination because MCK set a criterion (40 years age) in recruiting designer, which is discriminatory in relation to age, protected characteristics of Sarah. Recent case example of indirect discrimination can be examined from the Homer v Chief Constable of West Yorkshire [2012] 3 All ER 1287 (“Homer”) case. In this case, claimant was discriminated by the public police authority in setting out qualifications for a specific job (Kamm & Lee, 2013).
Therefore, she can raise a written grievance procedure at MCK. The formal procedure would require disciplinary actions against John Barnsley. In that case, company would be required to take disciplinary action against John and recruit Sarah on a permanent position. The failure to do so would be violation of the UK Employment Act that requires every company in UK to have formal procedures for handling grievance and disciplinary actions.
On the rejection of MCK’s Human Resource in taking disciplinary action, Sarah might approach employment tribunal in UK. This is a severe legal action taken against the ageism exercised by MCK. The tribunal might apply compensation charges separately on the interviewer and the company due to its discriminating advertisement terms. It is important to view that there are no specific limits for the compensations that could be offered to Sarah by the UK Tribunal. The Tribunal will see that MCK’s equal opportunities policy does not employ age as protected characteristics.
Sarah might be able to recover damages from an employment tribunal claim in the form of injury to her feelings or compensation for a financial loss in waiting for the non-discriminatory action. Sarah has waited for the job two months after applying for it although she knew that the company is searching for a young designer but her protected characteristic of age encouraged in her actions. It can be assumed that in the period of these two months, she might not have applied for other permanent jobs. Moreover, only two months and a week has passed in the discrimination exercised by MCK against her recruitment. It can be viewed that the UK Equality Act 2010 allows her to file a case in tribunal within three months. She has time to do so against MCK.
On the other side, Sarah also has an option to file claim in the court of appeal under Employment Act and the court has set compensation bands to deal with the financial loss or emotional injuries to the individual in case of discrimination specifically ageism. The top band for the compensation is applicable on the most serious cases £19,800 to £33,000 (although it can exceed this in exceptional cases). On the other hand, middle band for compensation ranges from £6,600 to £19,800 and the lower band for compensation ranges from £660 to £6,600 (Landau Law Solicitor, 2015).
Thus, based on the application of relevant case laws on the Sarah’s case, it can be examined that ageism or age discrimination is the severe legal implications of the situation under the Equality Act 2010 and the legal actions resulting from the Sarah’s complain might be formal written grievance procedure application, disciplinary action, hearing from employment tribunal, compensations and damages.
Thus, it can be concluded that MCK should avoid such discrimination in any of its human resource stage to avoid discrimination. From the analysis of the issue and relevant UK legislation, it can be examined that employees and prospective candidates like Sarah have a favorable edge in employment related matters due to the support of the UK legislation.
