WEEK 7 Flashcards
Satisfactory Quality – what is standard?
It means that the quality is satisfactory in the eyes of the reasonable buyer
SOGA sets out some considerations on this:
Fit for the purpose of that type of goods
Appearance and finish
Freedom from minor defects
Safe
Durability
Knowledge and examination
If the buyer has had any defects pointed out to them or has examined the goods before purchase, they may not have the protection of SOGA
Defects pointed out to buyer have to state the specific flaw in the goods
Buyer under no obligation to examine goods, but if they do and fail to spot an obvious defect, seller not liable
Instructions and precautions
Buyer is expected to follow instructions supplied with goods
Seller will not be liable if instructions not followed
Buyer is expected to take normal precautions, but not have to take any special precautions (see Grant v Australian Knitting Mills)
Agency
Is the relationship between two persons: the agent and the principal
The purpose of the agent is to form a contract between the principal and a third party
Creation of an agency relationship
Express agreement
Implied agreement
Necessity
Agency by Estoppel
Ratification
Express agreement
Principal appoints the agent and gives them actual authority to act on their behalf
Implied agreement
Where it is assumed that the principal has given the agent authority to act on their behalf
E.g. employer-employee relationship
Necessity
Where an emergency arises which requires a person to protect the interests of another
In order to that, the person must take action
See Great Northern Railway v Swaffield
Agency by Estoppel
where the principal’s words or actions give the impression that they consent to a person acting as an agent
Ratification
Where an agency relationship is made retrospectively
No agency relationship at the time of the agreement
Duties of an agent
Duty to perform agreed tasks and follow instructions
Duty to exercise care and skill
Duty not to make a secret profit
Duty not to take a bribe
Duty to maintain confidentiality
Duty to personally perform tasks
Duty to account
Duty to avoid a conflict of interest
Rights of an agent
Right to remuneration
Right to a lien over the principal’s property
Right to claim indemnity
Relationship between agent, principle and third party
Once an agent has created a contract between the principal and the third party, usually the agent has no further responsibility
This means the only people that can sue and be sued on the contract are the principal and the third party
Three types of employment status
Employee – someone who has an employment contract with an employer
Self-employed contractor – someone who provides services for a fee
Worker – someone between the two types above
What makes somebody an employee?
Control test
Integration test
Economic reality test
Mutuality of obligation test
Multiple test – most used test in recent times, combining issues of all other tests
Termination of employment
1 – Wrongful dismissal
2 – Unfair dismissal
3 – Constructive dismissal
Wrongful dismissal
This covers a dismissal that is in breach of the employment contract
E.g. if the correct notice period is not given
Unfair dismissal
Key questions to ask if there has been an unfair dismissal are:
Has there been a dismissal?
What was the reason for the dismissal?
Did the employer handle the dismissal in a reasonable manner?
Potentially fair reasons for dismissal
1 – Capability
Qualifications
Incompetence
Health
2 - Conduct
Ordinary misconduct & gross misconduct
3 – Redundancy
(if correct procedure is followed)
4 – Statutory bar
e.g. work permit expired, bus driver disqualified from driving
5- Other substantial reasons
Breakdown in working relationships
Key client threatening to withdraw business of small organisation if person not dismissed
Automatically unfair reasons for dismissal
Family reasons e.g. pregnancy, maternity and paternity leave
Health & safety reasons e.g. refusing to work in an unsafe environment
Issues relating to trade union membership
Taking part in official industrial action
Requests for the minimum wage
Whistleblowing i.e. making protected disclosures
Accompanying workers to a disciplinary hearing
Constructive dismissal
Where an employee is entitled to resign over the employer’s behaviour
Although they resigned, if it is deemed that the behaviour of the employer was unreasonable, they can bring proceedings for unfair dismissal.
Possible examples of constructive dismissal
Not receiving contractual remuneration
Change the terms, duties or location per employment contract
Failure to deal with a grievance
Intolerable working environment
Poor handling of disciplinary matters
False accusations of misconduct
Conditions required for constructive dismissal
As set out in Western Excavations Ltd v Sharp (1978)
1 – The employer must have done something that is in breach of contract
2 – The employee decides to resign shortly after the breach
3 – The employee resigned purely because of this breach
Can be a series of minor breaches or one big one
