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Law For Managers > General Questions - lectures 1-5 > Flashcards

General Questions - lectures 1-5 Flashcards

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1
Q

Courts are bound by the decisions of higher courts, must consider but are not bound by the decision of lower courts and in general are bound by their own decisions. This is known as…..?

A

The Doctrine of Binding Precedent

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2
Q

What is in a case report?

A

Summary of judgement
Full facts given
Full legal reasoning

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3
Q

What is in the summary of judgement in a case report?

A

Relevant facts
actual result
ratio decidundi
orbiter dictum

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4
Q

What is Ratio Decidundi and Orbiter Dictum?

A

Ratio Decidundi is the reasoning that is vital to the decision. Orbiter Dictum is other guiding comments a judge may make on the case that are persuasive but not binding.

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5
Q

The rule that parliament supersedes all other UK law makers is known as…..?

A

The Doctrine of the Supremacy of Parliament

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6
Q

The latin term for compensating the innocent party so that they are to be in a position that they would have been if the contract was carried out as agreed is….?

A

restitutio in integrum

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7
Q

What are the three bodies of UK parliament?

A

House of Commons, House of Lords, Monarchy

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8
Q

What gives power to local authorities?

A

bye-laws

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9
Q

The European Communities Act 1972 is what?

A

An act of UK parliament that incorporated European Union Law into UK domestic law as of 1973

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10
Q

What are the three sources of EU law?

A

Treaties, Regulations, Directives

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11
Q

Which two sources of EU law are secondary legislation? What is the difference between the two?

A

Regulations - these are binding and therefore no need for further legislation
Directives - not directly applicable and therefore legislation is needed, which member states must enact

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12
Q

What is a treaty and what are some examples?

A

An international agreement which is directly binding and therefore there is no need for further legislation.
eg. Rome 1957 - Creation of European Economic Community, the predecessor of the EU.
Maastricht 1992

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13
Q

Which is the highest court in Europe, where does it convene and on what issues?

A

European Court of Justice. Luxembourg. Some cases involving some aspect of community law. Not to be confused with European Court of Human Rights .

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14
Q

What does ACAS stand for?

A

Advisory, Conciliation and Arbitration Service

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15
Q

What is ACAS’s settlement rate?

A

60%

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16
Q

What is the difference between arbitration and conciliation?

A

Arbitration involves unions and agree to be bound by the decision, conciliation is for private disputes without.

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17
Q

Discuss advantages and disadvantages of negotiation and arbitration over litigation

A

cheaper, less publicity, arbitrator specialist in field, more informal, negotiation keeps business relationship in tact, may be foregoing legal rights - this could lead to soft touch reputation

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18
Q

What is the order of hierarchy in the criminal courts?

A

Magistrates court is below Crown Court

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19
Q

How many cases go through the magistrates court and who judges?

A

98%. 3 Justices of Peace - part time, non lawyers advised by legally trained clerks.

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20
Q

What is the term of a full time and legally qualified magistrate?

A

Stipendiary Magistrate

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21
Q

Who sits in Crown Court and what cases do they hear?

A

Judge and Jury. Appeals from Magistrates court and serious cases. Business fraud would be sat here

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22
Q

What is the order of hierarchy in the civil courts?

A

County Court sits below the High Court

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23
Q

Who sits on a County Court and what cases are heard here?

A

Judge, no jury. Local Civil cases that are wide dealing eg. family, contract etc, but NOT employment. Cases below £25k.

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24
Q

Where is the high court located and what amounts are disputed here?

A

Royal Courts of Justice, cases for £50k+

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25
Q

What is the hierarchy for the Appeal Courts?

A

Court of appeal - sits in the Royal Courts of Justice. Has Civil and Criminal division
House of Lords - renamed Supreme Court

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26
Q

Who sits at a tribunal?

A

chaired by lawyer, accompanied by 2 lay members - one from a union background and one from an industry background

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27
Q

Where is the Final Appeal court?

A

Luxembourg - European Court of Justice.

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28
Q

What prevails, UK or EU law?

A

EU

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29
Q

What percentage of civil cases go to court?

A

5%

30
Q

As a business, what is the procedure regarding applying to the County Court?

A

Beforehand, write a letter of action. Then obtain a summons from the court. Other party has 2 weeks to respond with defence or admission.

31
Q

As a business, what is the procedure regarding applying to the ET?

A

Usually on defending side, so receive Claimant’s ETI which has been submitted to ROIT. Complete IT3. No legal aid available, anyone can represent.

32
Q

Talk me through Branson’s life

A

Sole trader - student mag
then mad 3 LTDs - raise capital, reduce liability, tax advantage but meant increased legal formalities, admin expenses, public accounts, directors had say
1986 - some became PLC and floated on SE
1989 - re regitered as private. Had 40 ltds since

33
Q

IF a company goes bankrupt, what happens to the director?

A

15 year ban

34
Q

What are the legal responsibilities of a director according to what act?

A

Companies Act 2006. Proper accounts be kept, act in interest of shareholders, non compliance leafs to fines, disqualification and criminal charges.

35
Q

Under what act and in what circumstances are employers criminally liable for deaths of employees?

A

Under HSA 1974, if there is a breach of this which has come from the consent of a director, then liable for 2 years in jail. If a director didn’t consent, then the company is liable.

36
Q

What Act creates possible liability for a company in the case of an employee that has died due to gross negligence? What else can occur in this case?

A

A business (not an individual) can be charged under the Corporate Manslaughter Act 2007. If convicted, ordered to pay substantial fine. The family can also bring civil action for negligence.

37
Q

What are the current tax rates?

A 
Personal Allowance: £10,600
20% Basic Rate: 0-31785
40% above until 150,000
45% above 150,000
Corp tax: 21% on prof up to 300k
38
Q

The Equality Act was formed in what year?

A

2010

39
Q

What are the laws regarding references?

A

Not entitled to one, although must be honest and accurate or can be sued for negligence

40
Q

What is the difference between an employee and contractor?

A

Employee has a contract of service and a contractor has contract for service. A contractor is not covered by laws regarding unfair dismissal and redundancy.

41
Q

What case is the 3 point test regarding contracts for services from?

A

Ready Mix Concret -v- Inland Revenue 1968

42
Q

What is the 3 point test for determining whether a contract of service exists?

A

Exists if:

1) Servant agrees that in return for a wage/other form of renumeration, he offers his own work/skill for the service of his master
2) In doing so, agrees to be subject to some control to sufficient degree by his master
3) Other provisions of contract consistent with being a contract of service.

43
Q

What are the sources of terms in a contract?

A

Implied (eg. assume to show reasonable skill, follow reasonable instruction), Express, Inserted by Statute, Inserted by Collective Agreement

44
Q

What Act inserts terms by statute into all contracts of services?

A

Employment Rights Act 1996

45
Q

Under the ERA 1996, what section talks about entitlements to redundancy pay and how is payment calculated?

A

§162
every year worked between 18-22, 1/2 weeks pay.
22-41: 1 weeks pay
41+: 1.5 weeks pay

46
Q

What is needed to be entitled to redundancy?

A

2 years continuous employment

47
Q

What is the limit for redundancy claims in years and value?

A

more than 20 years, more than £464 a week

48
Q

What methods of resignation can give rise to claims for unfair dismissal?

A

Termination by employer with/without notice
Constructive dismissal
Fixed term contract comes to end

49
Q

In Unfair dismissal, what is needed by employee?

A

2 years continuos employment

50
Q

What must the employer prove in an unfair dismissal case?

A

prove reason for dismissal valid

prove that he acted reasonably in all circumstance

51
Q

Under what section of the ERA are valid reasons stated for dismissal, and what are they?

A

§98

Capacity, Conduct, Redundancy, Statutory Prohibition, some other substantial reason

52
Q

What case is cited for capability as a valid reason for dismissal?

A

Davison v Kent Meters Ltd 1975

53
Q

What cases are cited for conduct as a valid reason for dismissal?

A

Pepper v Webb 1969

Walters v Top Crust Foods 1972

54
Q

What questions are asked regarding unfair dismissal due to capability?

A

Was a warning given, was a chance to improve offered, other alternatives/redeployment offered?

55
Q

What questions are asked regarding unfair dismissal due to conduct?

A

Was disciplinary procedure followed? Reasonable belief of guilt? reasonable investigation? Warning? (ACAS suggests at least 1)

56
Q

What case is cited for redundancy as a valid reason for dismissal?

A

Allwood v William Hill Ltd 1974

57
Q

What questions are asked regarding unfair dismissal due to redundancy?

A

Was as much warning as possible given, consultation with the union, objective selection policy based only on criteria?

58
Q

What are the remedies for unfair dismissal?

A

Reinstatement but this is rare
Compensation 1) a basic award calculated similar to redundancy 2) compensatory award for the past or future earnings. Max. £78,335 as of April 2015

59
Q

When is unfair dismissal automatic?

A

Dismissal for trade union membership(TULRCA 1992 §152)
or pregnancy (ERA 1996 §99)
or refusing to work on Sunday (ERA 1996 §101)
or health and safety reasons (ERA 1996 §100).

60
Q

What are the limited remedies for wrongful dismissal?

A

Payment of wages during the notice period

61
Q

What regulations deal with the change of ownership of a company?

A

Transfer of undertakings regulations 1981. Enacts the EU acquired rights directive 1977

62
Q

After the transfer of ownership, if an employee rejects new terms offered what happens?

A

He can claim redundancy pay

63
Q

What is the maximum compensation claim for discrimination and since what year?

A

There is no maximum. 1994.

64
Q

An employer is legally responsible for employees actions. What is this is known as?

A

Vicarious liability.

65
Q

Under the employment act of 2010, what are the nine protected characteristics?

A 
Sex
Race
Disability 
marriage and civil partnership 
sexual orientation 
pregnancy 
religion 
gender reassignment
 age
66
Q

What were the original acts that is protected against sex and race discrimination?

A

Sex discrimination act 1975

Race relations act 1976

67
Q

If there is discrimination before employment regarding advertising and recruitment, who brings a claim?

A

Only the Equality and Human Rights Commission

68
Q

In what sections of the sex discrimination act and the race relations act does it legislate against discrimination and what does it say?

A

Section 1 of the sex discrimination act and section 6 of the race relations act.
It is illegal to treat someone less favourably on grounds of sex/race.

69
Q

What must an employee prove in a discrimination hearing?

A
  1. Less favourable treatment
  2. On grounds of sex/race
  3. To his/her detriment
70
Q

What is racial grounds based upon?

A

Colour, race, nationality, ethnic or national origins.

71
Q

In what case is the test for ethnic origin found and what is the test?

A

Mandla v Dowell Lee 1983.
For an ethnic origin to be recognised it must have:
1) long shared history
2) Cultural tradition of its own
3) Common language, religion and geographical origin
(Sikhs are ethnic group, Rastafarians are not)

Law For Managers (3 decks)

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