The Importance of the Business Employment Law - Assignment Example

BUSINESS EMPLOYMENT LAW By Name Course Instructor Institution City/State Date Question 1 A contract is described as a legally binding agreement entered into by two or more parties at their own free will. This means that failure to abide by the rules set out in the agreement or failure to adhere to the contract could lead to the prosecution of the parties who defaults the contract (Hondius, & Grigoleit, 2011, p. 120). However, there are a times that a party to a contract may want to opt out of a contract due to various reasons. In such a scenario, it leads to termination of the contract, but then this could also prove to be quite challenging. This is attributed to the fact that termination of a contract is based on various on various factors. This is to say that an individual cannot just decide to terminate a contract as they wish, as this may be detrimental to the other party (Elliott, & Quinn, 2013, p. 220; Poole 2012, p. 270). Therefore, in an effort to ensure fairness to parties in the contract termination of contract is based on various legal grounds. These legal grounds stipulate instances under which parties may terminate their contract. In the case of AFSB termination is done without any notice or cause for termination. This could lead to legal suits being instituted against AFSB on the basis that termination was not conducted using the proper channel (Poole 2012, p. 230). However, the law does allow parties to a contract to terminate their contractual obligation without necessarily providing notice to the other party. In addition to this parties can also terminate their contract without cause pursuant to a term in the contract (Hondius, & Grigoleit, 2011, p. 200). Therefore, these two legal principles do allow parties to terminate contracts without necessarily notifying the other parties. However, courts have been careful in allowing these principles in an effort to avoid instances whereby parties misuse this principle. One of the factors that the court considers whether termination was done in good faith (Andrews 2012, p. 485). This is to say that upon terminating the contract the party in question did not do so as a way to frustrate the other party to the contract. Additionally, the courts will in most instances consider the issuance of a notice to effect the termination. Where a notice is not issued the court will consider the instances and manner under which the termination was conducted. Therefore, under the law AFSB had the ability to terminate the contract, based on the fact that contract are entered into voluntarily and therefore parties should be allowed to walk out voluntarily (Gillies 2004, p. 315). Therefore, in relation to the factors considered when terminating a contract without cause, it could be argued that AFSB terminated their contracts on the basis of the interest of the company. This is to say that Simon did not at any one time act in bad faith, but his actions were based on the interest of the company (Gillies 2004, p. 330). This is based on the fact that if AFSB proceeded with the previous contract they would have incurred more expenses than the latter. As a result the termination of the contract is in no way done under malice (Chen-Wishart, 2012, p. 592). However, despite the fact that AFSB did not maliciously they could still be liable for damages. The damages will serve as compensation to the other party to the contract. This is attributed to the fact that the delivery company had received the earlier tender and had made a reply to AFSB. This is a clear indication that the other party had started enforcing their end of their agreement. Therefore, this makes AFSB liable for compensation to the other party for their partial performance of the contract (Hondius, & Grigoleit, 2011, p. 270). In conclusion, termination contracts is quite a delicate matter as it could result in suits being instituted against the party terminating the contract. This is attributed to the manner in which termination was effected. In the case of AFSB, contract were terminated without any cause pursuant to the contract. This is to say that no party to the contract did any wrongdoing, but rather AFSB practised the right to voluntarily terminate the contract. In addition to this, the termination of the contract was done in the interest of the company, thus eliminating instances of malice on the part of Simon and AFSB Question 2 Employer and employees normally enter into contract of employment prior to the start of the employment. The employment contract contains the manner in which the employer and the employee interact in the course of employment. In addition to this, the employment contract stipulates the conditions for employment. This is to say that an employee cannot work outside the scope set out under the employment act (The city law school, et al 2014, p. 56). This also relates to the employer in that the employer cannot ask an employee to work outside their scope of duty if the said task is not in the employment contract. This also relates to the place of work since most employment contract stipulate a workstation where an employee is to undertake his duties. However, where an employee is required to move to another work station the law requires that such an employee should be given notice in advance (Collins 2010, p. 230; Blanpain et al 2010, p. 300). The notice allows the employee to start making lifestyle adjustment for the purpose of moving into a new location. However, in the case of Fred no notice was given in advance indicating that he would move to Portsmouth in the near future. This is despite being the fact that the move will be on a temporary basis (FL Memo Ltd 2006, p. 700; The city law school, et al 2014, p. 90) The law does empower employers to transfer their employees to various workstations within the same organisation. However, the law also requires that should an employer intend to transfer an employee to a different location, they should issue the employee with a notice which in most cases is a one month notice (Ford, et al 2000, p. 120)The notice is to allow the employee to adjust their lifestyle to the new working environment. The notice also helps in psychologically preparing the employee for the transfer, thus eliminating instances of psychological torment (Freedland 2006, p. 160). However, where an employer fails to issue a notice for transfer then it amounts to a breach of contract. This is attributed to the fact that by failing to issue a notice in advance the employer did not take into consideration the implications of the transfers (Blanpain et al 2010, p. 230). Therefore, Fred has the right to refuse to the transfer despite it being on a temporary basis simply on the fact that it was in breach of his employment contract (Freedland 2006, p 130). Additionally, the company did not take into consideration the fact that the Fred lives with his family. A move to Portsmouth could destabilise the family bearing the fact that his children are still young and are used to seeing their father. Therefore, separating Fred from his young family could greatly affect the manner in which his children develop. Additionally, the company did not indicate or make arrangement for Fred to live while in Portsmouth. Therefore, this meant that it was up to Fred to find a place to stay while working for the company. Given that no notice was issued earlier it means that it could prove to be quite impossible for Fred to make proper arrangements in Portsmouth. Therefore, this could greatly interfere the manner in which Fred performs his duties while at work (Blanpain et al 2010, p. 250). In conclusion, Fred has every right not to abide to the requirements by the employer that he should move to Portsmouth even on a temporary basis. This is based on the fact that the employer was in breach of the employment contract, since a one month notice was not issued in regards to the transfer. In addition to this, the law does require that employees should be issued with notice within a reasonable time in regards to any activity that could affect the terms of their employment. As a result the request to have Fred move to Portsmouth for three months is void and as such Fred has every right to decline the request to have him move to Portsmouth. Question 3 In the past employees have had to lose their employments whenever their organisations stopped operations due to an undertaking. Therefore, as a result most employees dreaded instances of closures or undertaking as this would mean loss of employment. This is the same scenario facing Fred and his fellow workmates. This is attributed to the fact that their company wishes to close its Southampton’s office and relocate to Portsmouth (Ryley & Upex, 2014, p. 230). The relocation to Portsmouth could in the past mean to loss of most of the employees as the undertaking meant that chances of other individuals occupying the same job position were high in Portsmouth (Derbyshire & Hardy 2012, p. 190; Britain: Parliament: House of Commons: Trade and Industry Committee 2005, p. 120). Therefore, the jobs were not secure and should they find an opportunity in Portsmouth, they were more likely to be lower than the job they had. Therefore, this means that most of the employees were more likely to be demoted should the company go ahead with its plan of merging with the organisation in Portsmouth. Therefore, this led to numerous suits being instituted by individuals who lost their employments as a result of the undertakings (Brewer & Youngs 2007, p. 150). These legal suits at times proved too costly for other employees, which meant that they could not enforce their rights. This led to such employees losing their employment (Britain: Parliament: House of Commons: Trade and Industry Committee 2005, p. 150). However, in recent developments laws were passed in an effort to provide security to the employees by ensuring that at no point could they lose their employments as a result of an undertaking? The law or TUPE as it is commonly referred to stipulate that should mergers or undertakings took place (Derbyshire, et al 2008, p. 160). This is because with the introduction of TUPE employees are assured that their rights will be protected. This is because with TUPE new employers are required to consider the affected employees. This is to say that the new employer which in this case are the managers of the offices in Portsmouth should make it their responsibility to oversee that employees affected with the closure of Southampton’s office secure their employment (Barnett & Scrope 2008, p. 260). This also means that the employees should be distributed within the Portsmouth office at the same capacity or at job level that is almost equal to their job rank at Southampton. Therefore, in relation to Fred and his fellow workmates they need not worry about moving to Portsmouth. This is attributed to the fact that with the help of TUPE, their jobs are secure with the move to Portsmouth Great (Britain: Parliament: House of Commons: Trade and Industry Committee 2005, p. 79) In conclusion, undertakings and foreclosures could prove tricky for employee and employers, since undertakings usually affect the rights of employees. This is attributed to the fact that undertakings usually led to institution of legal proceedings as employees fought for their rights. This is attributed to the fact that most undertakings and closures left numerous employee jobless. Therefore, their only resort was to institute legal proceeding in court in effort to get their jobs back. However, with the introduction of TUPE legal proceeding have seen tremendous decline. This is attributed to the fact that TUPE ensured that employees did not have to worry about losing their employment. This is because TUPE made sure that employees got a place in the new organisation thus maintaining their jobs. References Andrews, N 2012, Contract Law, Cambridge, Cambridge University Press. Barnett, D & Scrope, H 2008, Employment Law Handbook, London, Henry Scrope. Blanpain, R, Nakakubo, H & Araki, T 2010, Regulation of Fixed-term Employment Contracts: A Comparative Overview, Kluwer Law International. Brewer, M & Youngs, A 2007, TUPE transfers 2007: rights and responsibilities special report, Cambridge, Workplace Law Group. Chen-Wishart, M 2012, Contract Law, Oxford, Oxford University Press. Collins, H 2010, Employment Law, Oxford, Oxford University Press. Derbyshire, W, Hardy, S & Jones, G 2008, Tupe: Law and Practice: Transfer of Undertakings (Protection of Employment) Regulations 2006, London, Spiramus Press. Derbyshire, W & Hardy, S 2012, TUPE - Law and Practice, London, Spiramus Press Ltd. Elliott, C & Quinn, F 2013, Contract Law, 9th edn, New Jersey, Pearson Education, Limited. FL Memo Ltd, 2006, Employment 2006: Law and Practice, Human Resources, London, FL Memo Ltd. 687 Ford, KE, Notestine, KE & Hill, RN 2000, Fundamentals of Employment Law, Illinois, American Bar Association Freedland, MR 2006, The Personal Employment Contract, Oxford, Oxford University Press. Gillies, P 2004, Business Law, Annandale, Federation Press. Great Britain: Parliament: House of Commons: Trade and Industry Committee, 2005, UK Employment Regulation: Seventh Report of Session 2004-05, London, The Stationery Office. Hondius, E & Grigoleit, HC 2011, Unexpected Circumstances in European Contract Law, Cambridge, Cambridge University Press. Poole, J 2012, Textbook on Contract Law, Oxford, Oxford University Press. Ryley, M & Upex, R 2014, Tupe: Law and Practice,2nd edn, Bristol, Jordans Publishing Limited. THE CITY LAW SCHOOL, Duncan, N, Eady, J, Hungerford-Welch, P & Sprack, J 2014, Employment Law in Practice, Oxford, Oxford University Press. Read More