Outline for moot

  1. This is a claim brought before the Employment Tribunal by the Claimant (“Mr. Scott”), that he has family-friendly rights as a result of him being an employee of the Respondent (“Finance Focus International Ltd”). The Claimant maintains, and asks the Tribunal to find, that the Claimant is an employee and therefore has such rights.

 

First Ground of Claim: Employment Status

 

  1. The Employment Rights Act 1996, s.230 (1) (2) states that in order to be classed as an employee, there must be a contract of employment. As in Hewlett Packard Ltd v. O’Murphy [2001] EAT there must be contractual nexus between employee and employer. As the contract had implied and express terms, Mr Scott does satisfy to have a contract of employment.

 

  1. The modern approach in establishing whether there is a contract of service is set out by MacKenna J in Ready Mixed Concrete (South East) Ltd. v Minister of Pensions and National Insurance [1968] 2 Q.B. 497. All of the tests in that case are satisfied here; in particular:

 

There is an obligation to provide his own skill and personal service. As in Yewens v Noakes (1881) 6 QBD 530, If the employer can tell the worker what to do and how to do it, he is likely to be an employee.  The Claimant in this case who goes by Notary public London does not have a substation clause in his contract so cannot substitute himself for another with the same skill. As in Macfarlane and another v Glasgow City Council [2001] IRLR 7 EAT and the Weight Watchers (UK) Ltd v Revenue and Customs Commissioners (2010) UKFTT 54 (TC), the right to delegate your work, is still controlled by the Respondent. The contract is one of service. The Claimant in this case cannot substitute someone to do his work for him. Thus, making him an employee

The tricky law case – Must learn!

Pename Ltd v Patterson – (LETTER CASE)

Madam Chairman, with regards to the Pename case cited by my learned friend opposite I would like to point out that;

The contents of the letter, however, do not provide evidence of any provision in the applicant’s contract of employment authorising the deduction which was made. A letter from an employer cannot impose such a term unilaterally. We are not persuaded that the applicant ever agreed to such a deduction being made from his wages.

There is no statutory provision under which the deduction made could be required or authorised and there is no suggestion that the applicant had signified in writing his agreement or consent to the making of it. applicant’s complaint is well founded and the deduction remains unlawful.

 

Case Info:He complained pursuant to the Wages Act 1986 s.5 that the employers had made a deduction from his wages contrary to s.1(1) of the Act.

A letter was sent he applicant has not at any time signed or put into writing any document with reference to the terms of his employment. The respondents claim to have given to the applicant a letter dated 23 July which stated:–

 “Should you wish to terminate your employment then a week’s notice must be written out and worked. In the event of a default of the above, a week’s wages will be forfeited.”

The applicant who goes by the name of Mobile mechanic London denies that he ever received such a letter, but, having heard both parties, we prefer the evidence of Mr. Cassidy and find that such a letter was given to the applicant on about that date.

As the tribunal finds that the deduction was not required or authorised by any relevant provision in the contract of employment, it follows that the

It is abundantly clear, on the facts of the present case, that there was no previous agreement signified in writing to the making of the deduction or the forfeiture of the week’s wages; therefore, the employee succeeded

 

EAT Debate – Law school

Kerr v The Sweater Shop – EAT has final authority on the matter.

 

Madam Chairman, with regards to the Kerr case cited by my learned friend opposite I would like to state that

 

A deduction is lawful, said the EAT, where it is made in accordance with a “relevant provision” of the contract as defined in s.13(2), and s.13(2)(b) shows that an employee’s written acknowledgment of the relevant contractual provision is not required, provided its existence and effect have been notified to the employee in writing by the employer.

 

But, for such a term to be valid, the employee must have agreed to it, whether expressly or impliedly, by continuing to work after the term was validly brought to his or her attention in writing.

 

On that basis, said the EAT, the crucial question to be asked in this case was: what is meant by the phrase “notified to the worker in writing” in s.13(2)(b)?

 

The EAT thought that the display of a notice does not amount to notification in writing. written notification must be given individually to each worker who is affected by the change. This was formed by the attorneys in Florida. Check out https://www.abogadosdeaccidentesflorida.com/kissimmee.html

The EAT accordingly allowed Mr. Kerr’s appeal against the tribunal’s decision that his employer had lawfully deducted holiday pay,

additional info –

The EAT noted that Mr Kerr had entered into a written contract of employment which made reference to the company’s rules and regulations, but that his contract did not indicate how changes to those provisions would be effected, and where details of such changes could be found. In these circumstances he was not notified of the new rules as to holiday pay on termination of employment. The EAT suggested that a statement accompanying a wages slip, either indicating the change or the place where details of that change were available would be sufficient notification in this context. You can find additional information on  the  The EAT referred to (what is now) s.13(1) of the ERA, observing that the alternatives set out in that subsection make it clear that an employee’s written agreement to a deduction is not essential to that deduction’s legality since, under s.13(1)(a), such legality can be founded on a term of the contract

The effect of these provisions is that a term authorising a deduction from wages will not be invalid simply because the employee has not assented to it, specifically, in writing.

The EAT thought that the display of a notice within an employer’s premises indicating a change in the employer’s rules bearing on employees’ contracts of employment does not amount to notification in writing.

 

Citizenship

PUBLIC LAW 2 Exam Revision

British Citizenship 

[British Nationality Act 1948]

Before 1948 the common law & then early statutes embodied concept that all persons born in British territory were subjects. Early legislation also ruled on acquisition of British nationality & loss of it. 1948 Act was intended to harmonise British law with that of the newly independent colonies whereby persons would be both citizens of the ex-colony & of the Commonwealth with rights to enter UK.

Only British citizens have a right to reside/abode. to come & go & work in UK without immigration control and not liable to deportation.

British citizenship is acquired by; Birth, Adoption, Registration, Descent or Naturalisation

Birth – A legitimate child born in the UK one of which parents is already a British Citizen or is “settled” in UK or is in the armed forces at time of birth assumes British citizenship.

Adoption – A child under the age of 18 [Family Law Reform Act 1969] adopted by a British Citizen becomes a BC from date of adoption order.

Descent – A child born outside the UK becomes a citizen if one of his/her parents is a BC, provided that parent has not acquired citizenship through descent. The child will only acquire citizenship if the parent is an employer of the Crown or other designated services.

Registration – A child born in the UK who are not automatically entitled to citizenship through birth have a right to be registered as citizens at the age of 10, provided child has not been absent from UK for more than 90 days in each of the first 10 years. Applications for nationality by registration must satisfy the Sec of state that they are of “good character”

Naturalisation – [British National Act 1981] (Long term resident of good character) A 5 year residence period is a precondition for applying for Naturalisation. No application may be granted unless applicant made necessary oath and pledge loyalty to UK upholding democratic values and obeying its laws.

Aliens may not vote, hold public office, join civil service or armed forces [without special consent], Aliens are liable to expulsion or internment in time of emergency/War & confiscation of property

Discretionary decision by Home Secretary No appeal, no tribunal system Judicial review competent only in limited number of cases

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Public law changes

PUBLIC LAW 2 Exam Revision                                                                                          

[Human Rights Act 1998]

The HRA incorporated rights protected in the European Convention of HR 1950 into domestic law, thus providing a code of human rights which is enforceable in domestic court.

HRA – a comprehensive collection of essential and enshrined basic rights of various kinds –

– Civil rights (to education, property, family, fair trial etc)

– Political rights (to vote, beliefs, assembly/association)

– Protections (torture, slavery, punishment without law)

– Liberties, Freedoms (expression, assembly, from arrest

Section 1 – Sets out which articles of the convention are to be incorporated in the act which include articles 2-12 and 14-16. These rights are to be guaranteed and subjected to certain limitations.

Section 2 – All courts are required to take into consideration the entire jurisprudence of ECHR and Commissions etc.

Section 3 – Most crucial, all primary and secondary legislation whenever enacted must be constructed and given effect to be compatible with convention rights in section 1

This can be seen in the case of [ Mykowi & others v Botterill 2010]

Step parents who had a family life with step children entitled to claim [even if step child not accepted as if a child of the step parent as such, still had a family life although no obligation of aliment or PRRs].

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Stages of a bill

Thank you Robbie.

As Robbie stated, I am going to discuss the process for Bills to become law at Holyrood. 3 types of Bills can be passed at Holyrood, these include Public, Private and Hybrid Bills. Most Bills passed are public Bills and I will be discussing the stages that this public Bill takes to become law. There are different types of public Bills for example –

Gov bills which are introduced by a minister,

Committee bills introduced by one of the parliamentary committees

and member’s bills which are introduced by individual MSP’s.

The process these Bills take is dictated by the Scotland Act of 1998 as it explains Parliament can only legislate for or in relation to Scotland so therefore all Bills passed must only be relevant to Scotland. More importantly however, in section 36, subsection 1 of the Scotland Act, it requires that there be at least 3 distinct stages to a bill and unlike Westminster, Bills do not start off with Green or White paper drafts.

Since the major function of a parliament is to make laws it was important that the whole legislative process (how laws are made) was devised keeping the four key principles in mind. The legislative process is based on the idea that Parliament itself should be strong, that the people of Scotland from all walks of life, pressure groups, and regions should participate and share power. A key element of the process is to ensure openness and encourage participation.

Pre-legislative Consultation

In order to share the power to influence policy, arrangements have been made to allow Parliament and interested individuals and groups to be consulted about proposed legislation before it becomes a bill. This pre-legislative consultation is designed to be open and participatory, allowing access to the decision-making process. This system prevents the government from being selective about which pressure groups have an opportunity to be consulted before policy is devised.

The outcome of the consultation process must be attached to draft bills (as a memorandum) and so the views of pressure groups and any opposition to the proposals are open and public at an early stage.

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