Week 7 - Agency & Employment Law

Question 1

What is Agency?

Answer 1

• 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

Question 2

State the 5 Parts of CREATION Of an AGENCY RELATIONSHIP

Answer 2

• Agreement
• Implied Agreement
• Necessity
• Estoppel
• Ratification

Question 3

Creation of an Agency Relationship - Explain what is EXPRESS & IMPLIED AGREEMENT

Answer 3

• 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

Question 4

Creation of an Agency Relationship - Explain what is NECESSITY

Answer 4

• 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

Question 5

Creation of an Agency Relationship - Explain what is AGENCY By ESTOPPEL and RATIFCIATION

Answer 5

• 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

Question 6

State 5 DUTUES Of an AGENT

Answer 6

• 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

Question 7

Explain the DUTY Of An AGENT - DUTY To PERFORM AGREED TASKS And FOLLOW INSTRUCTIONS

Answer 7

• 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

Question 8

Explain the DUTY Of An AGENT - DUTY To EXERCISE CARE And SKILL

Answer 8

• an Agent with Professional or Trade Skill is Expected to Meet the Standards of a Person in that Profession/Trade
• Keppel v Wheeler (1927)

Question 9

Explain the DUTY Of An AGENT - DUTY Not to MAKE A SECRET PROFIT

Answer 9

• 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

Question 10

State 3 RIGHTS Of an AGENT

Answer 10

• to Claim Indemnity
• to Remuneration
• to a Lien over the Principal’s Property

Question 11

Explain the RIGHT Of an AGENT - RIGHT TO REMUNERATION

Answer 11

• 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)

Question 12

Explain the RIGHT Of an AGENT - RIGHT LEIN OVER THE PRINCIPAL PROPERTY

Answer 12

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

Question 13

Explain the RIGHT Of an AGENT - RIGHT TO CLAIM INDEMNITY

Answer 13

e;g; to Claim for Expenses and Loses Incurred in Carrying out their Duties as an Agent

Question 14

Explain the Relationship between Agent, Principle and Third Party

Answer 14

• 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

Question 15

State the 3 Types of Employment Status

Answer 15

• 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

Question 16

Explain the Type of EMPLOYMENT STATUS - EMPLOYEE

Answer 16

• 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

Question 17

Explain the Type of EMPLOYMENT STATUS - SELF-EMPLOYED CONTRADICTOR

Answer 17

• 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

Question 18

Explain the Type of EMPLOYMENT STATUS - WORKER

Answer 18

• 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

Question 19

State the 5 Tests that are Applied to Constute what an Employee is

Answer 19

• 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

Question 20

Explain WRITTEN STATEMENT Of EMPLOYEE’S TERMS

Answer 20

• 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

Question 21

Explain TERMINATION Of EMPLOYMENT and the 3 Types of Dismissal Claim that Can be Made in the Employment Tribunal

Answer 21

• Most Disputes Brought to Employment Tribunals Concern How an Employment Contract has Been Terminated

1 - WRONGFUL DISMISSAL
2 - UNFAIR DISMISSAL
3 - CONSTRUCTIVE DISMISSAL

Question 22

Termination of Employment - Explain WRONGFUL DISMISSAL

Answer 22

• 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

Question 23

Termination of Employment - Explain UNFAIR DISMISSAL

Answer 23

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?

Question 24

State 5 Potentially Fair REASONS for DISMISSAL

Answer 24

1 - CAPABILITY
2 - CONDUCT
3 - REDUNDANCY
4 - STATUTORY BAR - e.g. work permit expired
5 - OTHER SUBSTANTIAL REASONS - e.g. breakdown in working relationships

Question 25

Explain the Potentially Fair Reason For Dismissal - CAPABILITY

Answer 25

• a Person can be Dismissed in they are Not Capable of Doing the Job. Can relate the 3 Issues :
  Qualifications
• Incompetence - Employee may Have made Errors but Employer Needs to Consider if Training Warnings etc were Appropriate
• Health - employers Has to Consider Alternative Arrangements If Employee in Poor Health

Question 26

Explain the Potentially Fair Reason For Dismissal - CONDUCT

Answer 26

• Types : Ordinary Misconduct & Gross Misconduct
• the Employee can be Dismissed Without e.g. thefft, assault, bullying, aggressiveness (the employer will often lay out what’s gross misconduct in the contract)
• for Ordinary Misconduct, Warnings should be Given to the Employee

Question 27

State 3 Automatically Unfair Reasons for Dismissal

Answer 27

• Family Reasons e.g. Pregnancy, Maternity and Paternity leave
• Health & Safety Reasons e.g. Refusing to Work in an Unsafe Environment
• Whistleblowing

Question 28

What is CONSTRUCTIVE DISMISSAL

Answer 28

• where an Employee is Entitled to Resign Over the Employer’s Behaviour
• Although they Resigned if it’s Deemed that the Behaviour of the Employer was Reasonable, they can Bring Proceedings for Unfair Dismissal
  e.g.
• not receiving contractual remuneration
• change the terms, duties or location per employment contract

Question 29

What are the 3 CONDITIONS REQUIRED FOR CONSTRUCTIVE DISMISSAL

Answer 29

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