Week 7 - Agency & Employment Law Flashcards
What is Agency?
- the Relationship between 2 Persons : the Agent and the Principal
- the Purpose of the Agent is to Form a Contract Between the Principal and a 3rd Party
State the 5 Parts of CREATION Of an AGENCY RELATIONSHIP
- Agreement
- Implied Agreement
- Necessity
- Estoppel
- Ratification
Creation of an Agency Relationship - Explain what is EXPRESS & IMPLIED AGREEMENT
- EXPRESS AGREEMENT - Principal Appoints the Agent and Gives Them Actual Authority to Act on Their Behalf
Usually, Appointment will be By Written Contract - IMPLIED AGREEMENT - Where it’s Assumed That the Principal has Given the Agent Authority to Act On Their Behalf
e.g. Employer-Employee Relationship
Creation of an Agency Relationship - Explain what is NECESSITY
- Where an Emergency Arises which Requires a Person to protect the Interests of Another
- to Do That, the Person Must Take Action
Great Northern Railway v Sawffield
- Defendent Sent a Horse by Rail to Statio where Horse Arrived, Nobody was There to Collect and Nobody at Station has any Details of Owner
- Railway Company (Claimant) Arranged for Horse to be Fed and Stabled
- Defendant Refused to Reimburse Railway Company
- Decision : Claimant Acted in Best Interests of the Defedant, Therefore had Become an Agent by Necessity and Defendant was Bound to Pay for Costs
Creation of an Agency Relationship - Explain what is AGENCY By ESTOPPEL and RATIFCIATION
- 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 at the Time of the Agreement
State 5 DUTUES Of an AGENT
- Not to Take a Bribe
- To Exercise Care and Skill
- Not to Make a Secret Profit
- To Perform Agreed Tasks and Follow Instructions
- To Maintain Confidentiality
Explain the DUTY Of An AGENT - DUTY To PERFORM AGREED TASKS And FOLLOW INSTRUCTIONS
- Some Agents May be Given Specifc Instructions, Other May be Given Wider Discretion
- Agent Must Follow Principal’s Instructions, Even if They Think it’s Not in Their Best Interests
- an Unpaid Agent Doesn’t Have a Duty to Act, But If they do Act they Must do so In Accordance With the Instructions
Explain the DUTY Of An AGENT - DUTY To EXERCISE CARE And SKILL
- an Agent with Professional or Trade Skill is Expected to Meet the Standards of a Person in that Profession/Trade
- Keppel v Wheeler (1927)
Explain the DUTY Of An AGENT - DUTY Not to MAKE A SECRET PROFIT
- Agent Mustn’t Secure a Personal Financial Advantage, Unless Done with the Knowledge and Authority of the Principal
- Secret Profit = Profit Gained from Information which the Agent has Acquired from Acting on Behalf of the Principal
State 3 RIGHTS Of an AGENT
- to Claim Indemnity
- to Remuneration
- to a Lien over the Principal’s Property
Explain the RIGHT Of an AGENT - RIGHT TO REMUNERATION
- in a Contractual Agreement, Usual for Payment to be Stated as Wages, Commission or Both
- If and When Payment is Due Depends Fully On the Agreement Between the Parties
- Luxor v Cooper (1941)
Explain the RIGHT Of an AGENT - RIGHT LEIN OVER THE PRINCIPAL PROPERTY
e.g. an Agent who Purchases a Case of Wine for the Principe will be Entitled to a Lein Over the Case Until their Commision is Paid
Explain the RIGHT Of an AGENT - RIGHT TO CLAIM INDEMNITY
e;g; to Claim for Expenses and Loses Incurred in Carrying out their Duties as an Agent
Explain the Relationship between Agent, Principle and Third Party
- once an Agent has Created a Contract Between the Principal and 3rd Party, Usually the Agent has No Further Responsibility
- this Means the Only People that can Sue Can and Sued On the Contract Are the Principal and the 3rd Party
State the 3 Types of Employment Status
- EMPLOYEE - Someone who Has an Employment Contract With an Employer
- SELF-EMPLOYED CONTRACTOR - Someone Provides Services for a Fee
- WORKER - Someone Between the 2 Types Above
Explain the Type of EMPLOYMENT STATUS - EMPLOYEE
- the Employer Could be a Person, a Partnership or a Company
- Employees Have the Full Protection of Employment Law
- this Includes the Right to Claim for Unfair Dismissal (if employed for at least 2 years), Wrongful Dismissal or Constrictive Dismissal, Rights to Holiday Pay & Sick Pay and Maternality/Paterinality Rights
Explain the Type of EMPLOYMENT STATUS - SELF-EMPLOYED CONTRADICTOR
- Someone who Works for Themselves and Run Their Own Business
- Will Usually Provide their Own Tools/Equipment
- Includes Traditionally Manual Work e.g. plumber, builder but also Modern Roles such as IT Contractor
- Don’t Benefit from Employment Rights but Also Benefits such as Deductible Expenses which Reduce Tax
Explain the Type of EMPLOYMENT STATUS - WORKER
- Recently the Protection Given to Those who Aren’t Employees has Expanded
- a Worker Cannot Bring a Claim of Unfair Dismissal, Claim Statutory Redundancy etc
- But they are Subject to Working Time Rules, Should be Given Paid Holiday and are Entitled to Minimum Wage
- Includes Agency Workers, Casual Workers etc
State the 5 Tests that are Applied to Constute what an Employee is
- CONTROL TEST - what Extent is a Person Under the Control of an Employer
- INTEGRATION TEST - how Much of Their Work is Fully Integrated Into the Core Activites of the Employing Organisation
- ECONOMIC REALITY TEST - how Much a Person is Working on Their Own Account i.e. Looks for Evidence of Self-Employment Rather than Employment
- MUTUALITY Of OBLIGATION TEST - examines Whether the Employer is Obligated to Provide Work For the Employee and They are Obligated to Accept It
- MULTIPLE TEST - Combined Issues of All other tests
Explain WRITTEN STATEMENT Of EMPLOYEE’S TERMS
- an Employer Must Give Employees a ‘Written Statement of Employment Particulars’ If their Employment Contract Lasts at Least a Month or More
- this Isn’t an Employment Contract but will Include the Main Conditions of Employment
- Employer Must Provide the Written Statement within 2 Months of the Start of Employment
- Must Include : the business’ name, employee’s name, how much and how often an employee gets paid, hours of work
Explain TERMINATION Of EMPLOYMENT and the 3 Types of Dismissal Claim that Can be Made in the Employment Tribunal
- Most Disputes Brought to Employment Tribunals Concern How an Employment Contract has Been Terminated
1 - WRONGFUL DISMISSAL
2 - UNFAIR DISMISSAL
3 - CONSTRUCTIVE DISMISSAL
Termination of Employment - Explain WRONGFUL DISMISSAL
- the Covers a Dismissal that’s in Breach of the Employment Contract
- e.g. if the Correct Notice Period Isn’t Given
- If the Producers Laid Out in the Contract or the Staff Handbook Aren’t Ahered To, such as any requirements to Give Warning Before Dismissal Can Occur
- Wrongful Dismissal is a Breach of Contract Claim, Therefore Can be Heard in the Courts as Well as an Employment Tribunal
Termination of Employment - Explain 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?
State 5 Potentially Fair REASONS for DISMISSAL
1 - CAPABILITY
2 - CONDUCT
3 - REDUNDANCY
4 - STATUTORY BAR - e.g. work permit expired
5 - OTHER SUBSTANTIAL REASONS - e.g. breakdown in working relationships
