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COMP3219 > Week 6 > Flashcards

Week 6 Flashcards

1
Q

Unincorporated Business

A

No separate legal entity from participants
Sole trader
Partnership

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2
Q

Incorporated Business

A

Legal entity in its own right
Private limited company
Public limited company
Limited Liability Partnership

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3
Q

Sole trader

A

No distinction between business and individual
Entitled to keep all profits after tax
Unlimited and personal liability

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4
Q

Sole trader formation

A

No formal regulatory requirements
Register with HMRC
Can run the business however they wish

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5
Q

Sole trader business ending

A

Ensure no debts/unpaid tax
Notify HMRC
Bankruptcy procedures start if they can’t pay their debits

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6
Q

Partnership

A

Two or more persons come together and act in common to form a business with a view to profit

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7
Q

Partnership debts

A

Partners are jointly and severally liable for debts/torts
Firms creditors can take action against any partner
Liability shared equally based on their percentage of ownership

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8
Q

4 types of partner

A

Typical
Salaried
Silent
By estoppel

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9
Q

Typical partner

A

Has right to take part in management

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10
Q

Salaried partner

A

Paid, on letterhead, no rights/role

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11
Q

Silent partner

A

Invests money, no role in management

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12
Q

Partner by estoppel

A

Appear as partners, no participation

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13
Q

One partner can satisfy a debt but others cannot

A

That partner is responsible for the full debt, they can then seek the money owed from any defaulting partners

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14
Q

Partnership creation/dissolution

Partnership liability

A

Liability cannot be imposed on a partner for acts that occurred before they entered the partnership
Partnerships created with a partnership agreement
Liability continues even when a partner has left the partnership for acts conducted whilst a partner
Dissolved via agreement/lapse of time etc
Partnership liable for one partner committing a tort or crime in the course of business (actual or apparent authority)

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15
Q

Limited Liability Partnership

A

Separate legal entity
Contracts formed with LLP, not partners
Properties owned by LLP
LLP has unlimited liability

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16
Q

LLP dissolution

A

LLPs continue until wound up/dismissed, even if their internal membership changes
Wound up through the application by the majority of its members (other conditions)
Wound up through their insolvency

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17
Q

LLP Limited meaning

A

Individual partners are liable only up to their investment

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18
Q

LLP creation

A

Filing documents with the companies house, allowing them to start trading (Incorporation document and a statement of compliance)
Issued with a certificate of incorporation

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19
Q

Limited companies

A

Assets/Revenues are separate from the owner’s.

Can be private or public

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20
Q

Limited companies dissolution

A

Remain in existence until wound up
Can be wound up by applying to be struck from the register, or liquidation (voluntary or involuntary for insolvent companies)

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21
Q

Limited companies, limited meaning

A

Companies Act 2006
Company itself has unlimited liability
Shareholders do not have unlimited liability unless the company has insufficient assets. In this case, they are liable up to their share value or guaranteed sum

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22
Q

Limited company formation

A

Established through royal charter, statute and registration (with the companies house)
Need to write a memorandum of association (specifies private or public), articles of association and complete form IN01
Get a certificate and an entry in the Gazette

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23
Q

Illegal actions in limited companies

A

Limited companies can commit criminal offences/torts. Directors can be convicted for their actions.

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24
Q

Private Company

A

Ends with Ltd or limited
Prohibited from offering its shares to the public
Not required to have a secretary
No need for AGM
No minimum share capital
1 director required
Pass written resolutions without a meeting

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25
Q

Public company

A

End with Public limited company or PLC
Entitled to offer its shares and debentures for sale to the public
May be listed on the London Stock Exchange
Requires a secretary
Must hold annual AGM
Allotted share capital of £50000 (one quarter of the value of which must have been paid upon allocation)
2 directors required
Cannot pass written resolutions without a meeting

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26
Q

Definition of an agent

A

An agent has the right to facilitate contracts between the principal and other third parties
Contracts formed are not binding on the agent

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27
Q

Agent duties

A

Act in the best interests of their principal (Fiduciary duty)
Avoid conflicts of interest/No profit rule
Refrain from disclosing confidential information
Obey lawful instructions
Perform them personally with care and diligence
Maintain proper accounts
Delegation allowed if agreed with principal

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28
Q

3 main agent rights

A

Indemnity
Payment
Maintain the Goods

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29
Q

5 methods for the creation of an agency relationship

A

Express appointment (Actual authority)
Implied appointment (Implied authority)
Impression of representation (Apparent authority)
Authority through ratification
Situation of emergency (Authority through necessity)

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30
Q

Express appointment (actual authority)

A

Established via contract/express agreement outlining the extent of authority the agent has

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31
Q

Implied Appointment

A

Inferred when agent, by word or conduct, acts as if they have such authority and principal acknowledges they were entitled to act as such

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32
Q

Impression of representation (Apparent authority)

A

Principal has represented to the third party that the agent has the authority to act on their behalf
Must have been a representation which is then conveyed by the principal which the third party then acts on

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33
Q

Authority through ratification

A

Agent exceeds their authority and principal accepts any negotiated contract. (Person who has no authority acted as if they had the authority)
Only valid if given in reasonable time, principal exists at time of contracting, third party aware of principal existence and agent acts on their behalf and principal has the capacity to contract
Ratification may be expressed or implied

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34
Q

Situation of Emergency (Authority through necessity)

A

One party acts on behalf of another during emergency situations
Court can bind principal in actions of agent if not possible for agent to discuss issue with principal, agent acted in good faith, action was necessary to prevent loss or damage to principal

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35
Q

Indemnity

A

Protection against liability or costs incurred in their duties, unless agreed otherwise or if they exceeded their authority

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36
Q

Payment (Agent right)

A

Result of express agreement between the parties (rate and frequency) or implied by their conduct/circumstances

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37
Q

Maintain the goods

A

If principal is indebted to the agent, they have the right to maintain control over goods related to it until said debt is cleared

38
Q

Agent commits a wrongful act

A

Agent is personally liable and must pay damages
Principal may also be jointly and severally liable provided there is a sufficiently close connection
Wrongful conduct can fairly/properly be regarded as being done by the agent in the ordinary course of the principal’s business (vicarious liability)
Deep pocket theory

39
Q

Agent has not identified the existence of a principal to the third party

A

Agreed contracts are between the agent and the third party
Undisclosed principal may assume obligations, not if the third party wouldn’t have agreed knowing they were the principal, or if third party was denied the identity of the principal or the agent lied

40
Q

Agent can be terminated

A 
Agreement
Expiry
Accomplishment
Alteration of purpose
Bankruptcy
Death
Illegality
41
Q

Employment Law

A

Regulates conduct between an employer and their employee

42
Q

Labour law

A

Regulates conduct between unions and employers (collective agreements)

43
Q

Contracts of employment requirements

A 
Unconditional offer
Unconditional acceptance
Intention to form a legal agreement
Consideration
Certainty
If a job is subject to constraints, they must be met before the offer is made
Doesn't have to be in writing
44
Q

Express terms

A

Written into contract/statement of terms, incorporated from collective agreements or from work handbooks
Prevail over implied terms

45
Q

Written statement of terms must:

A

Be given to the employee within 2 months of the employee starting
Contain: Name of persons, starting date, renumeration, pension scheme, notice period, place of work, T&Cs for sick pay/holidays

46
Q

Implied duties owed by employers

A 
Pay
Provide work
Indemnify
Safety/duty of care
Mutual trust and confidence
47
Q

Implied duties of the employee

A 
Duty of mutual trust and confidence
Ready and willing to work
Reasonable skill and care
Obey lawful orders
Take care of the employer's property
Act in good faith
48
Q

Comparison of employees, workers and independent contractors

A

Employee (full rights, unfair dismissal rights, minimum notice periods, flexible working, redundancy payments et al.) Often qualifying periods of employment needed
Worker (some rights)
Independent contractor (no rights)

49
Q

Differentiating between employee and independent contractor

A

Employee: Someone under a contract of employment

Independent contractor: Someone under a contract for service

50
Q

4 parts of common law multifactorical test to see if you’re an employee

A

Control test
Integration test
Economic reality test
Mutuality of obligations test

51
Q

Control test

A

Who is the master and who is the servant?

Have they set hours of work?

52
Q

Integration test

A

The more integrated within the business one is, the more they’re an employee

53
Q

Economic reality test

A

Who is assuming the financial risk? If the person is taking on the risk, they’re more likely to be an independent contractor

54
Q

Mutuality of obligations test

A

Is there an obligation for the employer to pay and provide work and for the employee to work

55
Q

Lawful dismissal

A

Reasonable notice
Summary dismissal for cause without notice
Non-renewal of a fixed-term contract

56
Q

Wrongful dismissal

A

Claim for damage by an employee if the employer breached a term (substantive or procedural) when dismissing the employee, causing loss

57
Q

Unfair dismissal

A

Employer acts unfairly without good reason
Is claimant entitled to take a case (BoP Employee)
Main dismissal reason lawful? (BoP Employer)
Automatically unfair, automatically fair, potentially unfair
If potentially unfair, did the employer hande the dismissal in a reasonable way? (BoP neutral)

58
Q

Termination of the contract of employment

A

Lawful dismissal
Wrongful dismissal
Unfair dismissal
Redundancy

59
Q

At least a worker to get

A 
Minimum wage
Paid holiday
Rest breaks
Limits on maximum working time per week
Statutory sick/parental leave pay
60
Q

Redundancy causes

A

Business/workplace closure

Reduced requirement of employees

61
Q

Statutory redundancy protection

A

Compensation for the loss of the job to an employee dismissed by reason of redundancy
Employer must apply proper and fair redundancy procedures (pools, selection criteria, consultation)
Employer must inform employees that they are being made redundant, payment of wage and contractual benefit for period of notice of termination

62
Q

Who does the equality act apply to?

A

Those who are employed to do work/applying to do work

Requires contract, mutuality of obligation, personal service as dominant purpose and subordination

63
Q

Protected characteristics under the equality act

A

Age, disability, gender, sexuality, race, pregnancy, religion etc

64
Q

Age and ability discrimination excluded from?

A

Armed forces

65
Q

Who shouldn’t discriminate?

A

Employers
Employees/workers/employed persons
Vocational training providers
Trade unions and employer’s associations

66
Q

What does the equality act cover?

A 
Recruitment
Employment relation & terms of employment
Access to training/other opportunities
Dismissal/other detriments
After dismissal
67
Q

Prohibited conduct

A 
Direct discrimination
Direct discrimination by association
Direct discrimination by perception
Indirect discrimination
Harassment
Victimisation
68
Q

Direct discrimination

A

Treat a person less favourably because of a protected characteristic.
Discriminator can also have characteristic
Exceptions include occupational requirements (Proportionate means of meeting a legitimate aim)
Comparison -> Adverse effect -> Causative link

69
Q

Indirect discrimination

A

Provision, criterion or practice is neutral at face value but would put those with protected characteristics at a particular disadvantage
Show that it is not a proportionate means of meeting a legitimate aim and make a comparison to show that you or a particular group has suffered a disadvantage

70
Q

3 types of harassment

A

Related to sex/gender
Sexual harassment
Less favourable treatment due to acceptance or rejection of the first two types

71
Q

Harassment

A

Unwanted conduct related to the relevant protected characteristic which has the purpose or effect of violating the victims’ dignity or creating a hostile environment
Pregnancy/maternity & marriage/civil partnership not covered

72
Q

Harassment proof

A

Perception of the alleged victim
Other circumstances of the case
Reasonable for the conduct to have that effect

73
Q

Victimisation

A

Employer subjects a person to detriment because they brought proceedings under the act, gave evidence in connection to any proceedings, or alleged that another person has contravened the EA
Person has done a protected act

74
Q

Victimisation test

A

In relation to any of the prohibited circumstance (causation)
Detriment from employer
Because employee had done a protected act or the employer believed they had or the employee may do a protected act

75
Q

Equality clause

A

Statutorily imposes an equality clause in the terms of a contract of employment
Equal pay for equal work
Pay includes all consideration worker receives from employer

76
Q

Equality clause proof

A

Make a claim based on similar work, work related as equivalent or work of equal value
Reference to a comparator from the same employment (hypothetical)

77
Q

Material factor defence

A

Difference in pay is not due to sex but due to reasons such as responsibility/experience

78
Q

Work-life balance rights

A 
Pregnant workers (dismissal is automatically unfair)
Maternity rights (leave/pay)
Employees make take time off to help a dependent
79
Q

Working time regulations requirements for employers

A

Employers must implement the working time directive and young workers’ directive for health and safety reasons

80
Q

Working time regulations for time off

A

Minimum daily, weekly and annual periods of rest
Entitled to adequate breaks
Entitled to holidays and annual leave
Armed forces, police and doctors in training etc are exempt to WTR

81
Q

Working time definition

A

Periods when you’re carrying out duties or receiving training

82
Q

Working time regulations for time working

A

Work at most 48 hours a week, over a period of 17 weeks
Young workers can only work 8 hours/day or 40 hours a week
Night shift workers cannot exceed an average of 8 hours of work per 24 hours
Can opt out by individual agreement
Some unmeasured working time workers (managing executives, family workers and professionals)

83
Q

Breaks for adult workers

A

11 hours rest every 24 hours
24 hours rest every week
20 minutes away from your workstation every 6 hours

84
Q

Breaks for young workers

A

12 hours rest every 24 hours
48 hours rest every week
30 minutes away from your workstation every 4.5 hours

85
Q

Annual leave

A

5.6 weeks in any leave year taken in leave year which it was due

86
Q

3 issues with leave

A

Rate of holiday pay based on normal working hours
No carry forward with the exception of sick leave or employer doesn’t allow worker to exerise their entitlement to paid leave
Employers cannot “roll up” holiday pay - Must be given when the holiday is taken

87
Q

Working time regulation enforcement

A

Criminal and civil proceedings used to enforce it’s provisions

88
Q

National Minimum Wage

A

Over 23s is £8.91
Rise in april 2022
Includes everyone who is a worker, works ordinarily in the UK under contract and is not of of compulsory school age
Doesn’t include voluntary workers, people treated as members of family, armed forces etc

89
Q

Pay definition

A

Counted over a period of time discounting tips/expenses
Individuals have right to inspect their pay records and not be victimised for taking action
Burden of proof is reversed, assume worker is entitled to minimum wage and employer must prove they’re not

90
Q

Health and safety

A

Enforced by the health and safety at work act 1974
Employers owe a duty to take reasonable care of the health and safety of all wokers. An employee can claim for any injuries or damage suffered due to the employer’s negligence.

91
Q

Health and safety act enforcement

A

Fine or imprisonment of the employer

92
Q

Employers duties under health and safety act

A

Provide safe plant and systems of work
Safe handling and use of articles and substances
Relevant and necessary information for health and safety provided
Maintaining safe work environment
Safe environment, systems of work, safe handling of substances/articles, safe plant, providing relevant/necessary information and training

COMP3219 (14 decks)

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