Legislation & Insurance Flashcards
What is the Housing Grants, Construction and Regeneration Act 1996?
The Housing Grants, Construction and Regeneration Act 1996 (also known as the Construction Act) include provisions to ensure that payments are made promptly throughout the supply chain. These provisions include:
• The right to be paid in interim, periodic or stage payments.
• The right to suspend performance for non-payment and to claim costs and expenses incurred and extension of time resulting from the suspension.
• The right to adjudication.
• Disallowing pay when paid clauses (i.e. a contractor would only pay a subcontractor when the client had first paid them).
• Disallowing the release of retention being prevented by conditions within another contract.
There are also specific provisions in relation to the procedures for making payments:
• The client must issue a payment notice within five days of the date for payment, even if no amount is due.
• Alternatively, if the contract allows, the contractor may make an application for payment, which is treated as if it is the payment notice.
• The client must issue a pay less notice if they intend to pay less than the amount set out in the payment notice, setting out the basis for its calculation.
• The notified sum is payable by the final date for payment.
• If the client (or specified person) fails to issue a payment notice, the contractor may issue a default payment notice. If the client does not issue a pay less notice, they must pay the amount in the default payment notice.
What is legislation? What is an Act? What are Regulations? Why do Regulations exist?
Legislation is a law or a set of laws that have been passed by Parliament.
An Act is an example of Primary legislation, which set out broad outlines and principles, but delegate specific authority to an executive branch (e.g. the HSE) to make more specific laws under the aegis of the principal act.
Regulations are law, approved by Parliament, but subject to a lesser degree of scrutiny than Acts. They are examples of Secondary Legislation and drafted by subject-matter experts to enforce the Primary Legislation they sit under. They are easier to introduce than Acts and cover specific issues than require more details than Acts include. They are also introduced to capture European Directives.
What are the main sources of law applicable to HSE in the UK?
- Legislation - Acts or Regulations made by Parliament.
- Case Law – uncodified ‘Common’ law created by judges through verdicts and judgements that they base on precedent from previous rulings.
- EU Law – European Directives introduced to promote harmonisation across the EU member states.
- European Convention on Human Rights (ECHR) - As a Member State of the Council of Europe, the UK is a signatory to the ECHR.
Note: EU Law and the ECHR are translated into UK law via Legislation. Common/Case Law can also be turned into legislation if a new Act or Regulation covering these offences are passed by Parliament.
What is the Bribery Act?
The Bribery Act 2010 covers crimes of bribery, being bribed, the bribery of foreign public officials, and the requirements for commercial organisations (e.g. TfL) to prevent bribery on their behalf.
What is the Equality Act?
The Act (introduced in 2010) means that discrimination or unfair treatment on the basis of certain personal characteristics, such as age, is now against the law in almost all cases. The characteristics are:
• Age
• Race
• Sex
• Gender reassignment
• Disability (physical or mental)
• Religion or belief
• Sexual orientation
• Marriage or civil partnership
• Pregnancy and maternityWhat is the difference between public liability and professional indemnity?
Public liability insurance can cover businesses for compensation claims made by members of the public, which can include clients, customers, suppliers and passers-by. Claims may include:
• injury compensation claims made against you.
• property damage compensation claims made against you.
• legal fees associated with injury or damage compensation claims.
Professional indemnity insurance can cover businesses for compensation claims made by a client because of a mistake their work. The mistakes it covers could include:
• professional negligence.
• unintentional breaches of copyright or confidentiality.
• loss of documents or data.
• defamation or libel.
What is the Party Wall Act?
The Act brought in to prevent and resolve disputes of party walls and party fences. Any building owner proposing to start work covered by the Act must give the adjoining owner(s) notice of their intentions. The adjoining owner(s) can agree or disagree with what is proposed. Where they disagree, the Act provides a mechanism for resolving disputes. The Act is separate from obtaining planning permission or building regulations approval.
What is the difference between limited and unlimited liability?
Limited liability means you don’t face much personal financial risk for debts of your business.
Unlimited liability means you are fully exposed to potential losses based on company obligations. This may require you to sell personal assets to repay debts.
What does the Modern Slavery Act cover?
The Act (introduced in 2015) amalgamated existing criminal offences relating to modern slavery (including slavery, servitude, forced and compulsory labour and human trafficking) and increased the measures available to law enforcement agencies to address the matter of modern slavery, as well as protection and renumeration afforded to victims. It also requires ‘commercial organisations’ with a minimum annual global turnover of £36 million (e.g. TfL) with business in the UK to publish a slavery and human trafficking statement each financial year.
What is the difference between civil and criminal offences?
Criminal law relates to offences and breaches that are seen to negatively affect society as a whole, not just a small number of persons or parties. As such criminal offences are crimes against the State and brought in the name of the Crown, generally by the Crown Prosecution Service (CPS). A person is found guilty/not guilt and Criminal Law seeks to punish a perpetrator. Examples are: burglary, theft, arson, criminal damage, assault, sexual assault, battery, murder, fraud, money laundering and drug dealing.
Civil Law applies to the relationship between two or more persons or parties. In effect, one party tries to prove that the other party was negligent (or in breach of criminal law if applicable) and that damage has occurred as a direct result of that negligence. No one is sent to prison for civil offences and disputes are generally settled financially. Civil Law includes the Law of Contract and much of Civil Law has been built up through Common Law. A person is found liable/not liable and Civil Law seeks to remedy the affected person/party. Examples are: family disputes, such as divorce, dissolution of civil partnerships, children’s issues and childcare arrangements; personal injury cases, such as road traffic accidents, medical and clinical negligence and slips, trips and falls; breaches of contract or promise, such as cases where money is unpaid or a contract isn’t honoured; and employment law, for example where an employee suffers discrimination.
Note: persons and parties can face criminal and civil action for a single crime. In the criminal courts, it is the prosecution who will have the burden of proof, and the standard is much higher. They have to prove their case ‘beyond reasonable doubt’. In the civil courts, it is generally the claimant who has to prove their case, and the standard of proof is the ‘balance of probabilities’. This is why a victim of crime may be able to win a civil claim against someone for damages who has been acquitted in the criminal courts.
What is the Law of Contract? What is the Contracts (Rights of Third Parties) Act 1999
The Law of Contract is part of Civil Law. A contract is a formal written agreement on the goods or services to be provided by one party to another. Criminal liability cannot be transferred under contract. Where a person has a statutory duty for HSE, they also still have some or all of the duty even if they contract out the task to another.
The old general rule was that only a party to a contract could enforce its terms; anyone else (a “third party”) could not. The Contracts (Rights of Third Parties) Act 1999 changed this by enabling third parties, in certain cases, to enforce terms in contracts made in their favour. This can be implemented using optional clause Y3 in the NEC suite.
What offences are prosecuted in which UK Courts?
• Enforcement notices and prohibition notices are taken to Tribunals.
• Criminal cases are taken to the magistrates and crown courts (only crown courts have juries).
• Civil cases are generally taken to county court, may be taken to magistrates courts.
Civil and criminal appeals are heard in the high court. The Court of Appeals hear appeals on points of law, then cases are referred to the Supreme Court.
