The Key Aspects of Legal Framework in Employment - Assignment Example

STUDENT NAME: STUDENT NUMBER: Level Hand In Date: Module Number: Terms: Module Title: Legal Framework in Employment Module Leader: Assignment: SECTION A: SELF ASSESSMENT (TO BE COMPLETED BY THE STUDENT) In relation to each of the set assessment criteria, please identify the areas in which you feel you have strengths and those in which you need to improve. Provide evidence to support your self-assessment with reference to the content of your assignment. AREAS FOR IMPROVEMENT STRENGTHS -Identification of relevant laws -Identification of employment contracts on determining rights and responsibilities of employees -identification of rights of employees during contracts such as paternity leave and flexible working rights -Identification of rights of an employer to protect the business from unfair competition AREAS FOR IMPROVEMENT -Methods of addressing remuneration during paternity leave and flexible working situations -Identification of responsibility of legal actions against unfair competitor I certify that this assignment is a result of my own work and that all sources have been acknowledged: Signed: Date: SECTION B: TUTOR FEEDBACK (based on assignment criteria, key skills and where appropriate, reference to professional standards) AREAS FOR IMPROVEMENT AND TARGETS FOR FUTURE ASSIGNMENTS STRENGTHS DATE: MARK/GRADE AWARDED DATE SIGNED ASSIGNMENT MODERATED BY: DATE Moderators comments: Question 1 (a) Advice Stella Diamond whether Angela can use Stella’s recipe for the Black Forest cake if she leaves Coffee and Cakes Limited. Based on Angela’s employment contract, the first clause states that Angela has to ensure that within the first six months after the contract has been terminated, an employee must not engage in a rival business of making cakes. The act of Angela opting to move out illustrates that she is able to set up a similar business because she knows the activities that take place in the business such as the recipes used in the production of cakes. During her employment period, she is permitted to use the recipe for Black forest cake which is produced at Stella’s business. This is because she is an employee of the company and is allowed to discharge the duties of the company. However, when her contract is terminated, she ceases to have the authority to use the services of the company and is not allowed to use the recipe in the making of similar products. This is because; the person who has the authority to use the recipe is Stella based on the fact that Angela learned about the recipe from her company while she was employed there. Based on the nature of the first clause of the contract, when a period of six months have elapsed and Angela is still not employment by Coffee and cakes limited, Angela is permitted to use the recipe because it shall be assumed that she has not copied the recipe from Stella. This is because, during that period, it will be assumed that she has learned about the recipe elsewhere during the six months that she was not employed by Coffee and Cakes Limited. This is only applicable is she applies a similar procedure in the making of cakes in another location after six months have elapsed. However, if she uses the recipe in the first six months, she will be assumed to have breached this clause of the contract and Stella has the right to take legal action against her. The possibility of using the recipe to produce similar products in a rival business is also opposed by clause (b) of the employment contract that Angela and Stella wrote when Angela. According to this clause, it is prohibited that an employee should not canvass, solicit business, orders or custom any products provided by the business from any customer, supplier or sponsor. This is because; it will be regarded as a process of conveying the secrets of the business to other people such as competitors. The act of Angela using the recipe for making Black Forest cake after she has left the company will be in contravention of this clause because she will be canvassing the originality of the idea by claiming she has not copied it elsewhere. In this case, Stella should not allow her to use the recipe and if she uses it, Stella has the right to seek legal action against her. Furthermore, Employment Act of 1998 states that an employee must ensure the secrets of the business are not shared with people from other places which is not the company where an employee is working (Barrett and Howells 2000). The act of sharing such information can result into prosecution of an employee who performs such an offence for instance, in the case study, the act of using Stella’s recipe when Angela’s contract is terminated will be similar to sharing of the sectors of the business with outsiders. This can result into vulnerability of the business. Consequently, based on this clause, Angela should not be allowed to use the recipe for making Black Forest cakes. Another clause of the Employment Act 1998 states that an employee must maintain subordination to the company under which a contract for employment is made. This clause states that the employee should not use the resources of the company in other locations or provide similar services to rival businesses (Campbell and Patrick 2003). The actions of the employee must be based on the orders of the contracting company. Any violation of this clause is considered a breach of this clause and such an employee is subject to prosecution. Consequently, in the case study, Angela is only allowed to use the recipe when providing her services to Cakes and Coffee Limited. The use of the Black forest recipe is inclusive in this clause. Thus, if she decides to use the recipe when she has stopped working for Cakes and Coffee limited, Stella has the right to sue her for disclosing the secrets of the business to outsiders. (b) Advise Stella Diamond whether Angela can set up a rival cake business during and after her employment with Coffee and Cakes Limited An example of an advice that should be giving to Stella is that she should observe the first clause of the contract with Angela. According to clause a of the contract between Cakes and Coffee Limited and Angela, an employee must not for a period of six months from the termination of the appointment directly or indirectly engage or be concerned in the business of cake shop or a restaurant within a radius of four miles from the company’s location. Thus, Stella should determine whether Angela sets up a similar business in a location that is at least four miles from her business and if this is true, he should take legal actions against Angela. In addition, if Angela opens up another business within a period of six months following the termination of the contract, Stella should take legal actions against her so that she can either be barred from continuing with the business or seeking compensation for subjecting her business to competition as a result of understanding the secrets of cakes and Coffee Limited. There are other common laws that apply to this situation. For instance, the law of Unfair Competition states that fraudulent or deceptive business practice that is not allowed by the statute of common law aims at protecting intellectual and initial ideas of investments that enable businesses distinguish themselves from other businesses (Chandler and Waud 2003). In this case, it is observed that if Angela sets up another business, it will be unfair competition because she will be taking advantage of her experience at cakes and Coffee limited to set up a rival business. In addition, she will be taking advantage of the image that has been created by Cakes and coffee limited to set up another competing business. This is a practice that is prohibited by this law and legal actions can be taken against her. Consequently, with regards to this law, Stella should not allow Angela set up a rival business and legal action should be taken against her if she cannot refrain from setting up the rival business. The second part of the common law is aimed at preventing businesses from appropriating the good will of their rival businesses (Dimond 2010). In the case study, it is observed that since Angela was an employee of cakes and Coffee Limited, she is likely to be considered as a former employee of cakes and Coffee Limited and she is likely to attract customers of her former company into her personal business. This is prohibited and if she goes ahead and sets up a competing business, she is subject to prosecution by the court. In addition Trade Secret Law states that identifying characteristics of one company such as creative works, inventions, products and artistic works should not be interfered with by competing business irrespective of not being patented. According to the law of unfair competition, individuals and businesses can be awarded property rights provided they discover particular valuable information that they need to safeguard so that they can operate competitively to achieve their operational goals (Emir and Selwyn 2014). In the case study, it is found that the recipe for making Black Forest Cakes is unique to cakes and Coffee limited and is not expected to be used by another employee of the company in another place. If an employee of the company sets up a rival business, the employee is subject to prosecution and in some cases, the person can be fined. In order to protect herself, Angela is advised to use trade manes, service marks and a dress code. The use of trade name can ensure Cakes and coffee is distinguished from other businesses and service marks can be used to distinguish the services of the company from services offered in other companies. Furthermore, symbols and words should be used to identify the products of the company so that if Angela decides to open a similar business, she can found the need to be unique compared t9o hid current state. This is because according to the law of unfair competition, it is prohibited for competitors to create confusion among consumers as a result of using trade devices that are similar to a claim unfair infringement. (c) The effect of clause 8.3 of Angela’s employment contract According to section (a) of the clause, within the first 12 months following termination of the contract an employee should not seek to canvass or solicit business, orders or custom for any products and services provided by the business from any customer, supplier or sponsor. This implies that Angela will not be allowed to apply the skill she has obtained from cakes and Coffee Limited to set up another cake making business and she does not have the right to say that the skills she has are her personal skills but rather the experience she obtained while working for Cakes and Coffee Limited. Within these 12 months, she is not allowed to collude with other people so that they can apply the skills in making similar products that were being made at Cakes and Coffee Limited. If she violates this clause, Stella has the right to seek legal action against her. In addition section (b) of the clause states that within the first 12 months after the contract has been terminated, an employee should not solicit or entice away a member of the company’s staff or freelances. Thus, Angela does not have the right to seek the assistance from an existing employee of cakes and coffee Limited if she leaves the company. If she engages in such action, Stella has the right to seek legal action against her. Question 2 a. Explain to Wing Pie whether Mike Rawling can take a paternity leave and give details of his employment rights as a father. Since Mike Rawling’s wife is due to give birth, he should be allowed to take a paternity leave. This is because he is directly related with his wife and he has the responsibility of taking care of his family while being employed by Geeky Computers Limited. This is because, Employment Rights Act of 1996 Chapter 3 section 80A states that when an employee has been in a company for a specified duration and has a direct relationship to a newborn child or a relationship to the child’s mother, the employee should be allowed to be absent from work or leave based on this section so that he can take care of the child as well as supporting the mother (Hardy 2011). The right of Mike to paternity leave is justified by this clause because he has a direct relationship with the child’s mother and he is also directly related to the child. This is because in real sense, the mother will not be able to perform certain tasks during the first few months of birth and Mike can perform these tasks so that his family remains stable. This implies that Wing Pie should allows mike Rawling take a paternity leave for a duration of period that his wife will be able to recover from birth condition to a condition where she is able to perform her daily routine tasks that ensures her family is maintained. According to this Act, the employer is required to allow the employee take a paternity leave for a period of 56 days from the date of the child’s birth (Kew, Stredwick and Chartered Institute of Personnel and Development 2008). It also states that this law is applicable for the case of single births or where more than one child is born (Mernagh-Ward and Cartwright 1997). During the period that Mike Rawling will be on leave he will be entitled to salaries and benefits from Geeky Computers Limited and Wing Pie must make sure that these benefits are provided to him. If Geeky Computers limited fails to provide Mike Rawling with a paternity leave, he has the right to seek legal address so that his right can be accorded. b. Explain whether Mike Rawling is entitled to the right to work flexibly If Mike Rawling is able to work flexibly when his wife gives birth as is anticipated, he should be allowed to do so. This will ensure he is able to work for Geeky Computers limited as well as assist his wife to perform duties at home provided he is able to perform the duties of the company according to the required standards. According to Employment Rights Act 1996 section 80F, an employee who has served in a particular capacity for the company is allowed to work flexibly through a variation of terms and conditions of employment with regards to the number of hours worked and duration required at work (Kloss 2013). For instance, in the case study, Wing Pie can reduce the number of hours that Mike Rawling works for the company so that he can have enough time to take care of his family during the first days of his wife’s delivery. Furthermore, this Act states that an employer shall only refuse the application when he thinks there will be additional burden of costs, the possibility of not being able to meet customer demands, lack of capacity to recruit other staff or possibility of the employee to perform below performance capacity. However, if the employee meets these requirements, the employer has the duty to allow the employee to work flexibly failure to which the employee can seek legal action so that his right can be accorded to him. In the case study, Mike Rawlings has the duty to assure Wing Pie that he will be able to perform his duties effectively if allowed to work flexibly. However, if he thinks he will not be able to meet the demands the company, he is advised not to seek flexible working and should seek other means of solving his domestic issues while working for the company. However, based on the history of Mike’s working relationship with the company, he is able to work effectively when allowed to work flexibly and Wing Pie should allow him to do so. References Barrett, B., & Howells, R. 2000. Occupational health and safety law: Text and materials. London: Cavendish. Campbell, J., & Patrick, S. 2003. GCSE citizenship studies for AQA. Oxford: Heinemann. Chandler, P., & Waud, C. 2003. Waud's employment law: The practical guide for human resource managers, trade union officials, employers, employees and lawyers. London: Kogan Page. Dimond, B. C. 2010. Legal Aspects of Occupational Therapy. New York, NY: John Wiley & Sons. Emir, A., & Selwyn, N. M. 2014. Selwyn's law of employment. Hardy, S. 2011. Labour law in Great Britain. Alphen aan den Rijn: Kluwer Law International. Kew, J., Stredwick, J., & Chartered Institute of Personnel and Development. 2008.Business environment: Managing in a strategic context. London: Chartered Institute of Personnel and Development. Kloss, D. 2013. Occupational Health Law. New York, NY: John Wiley & Sons. Mernagh-Ward, D., & Cartwright, J. 1997. Good practice in salon management. Cheltenham: Stanley Thornes. Read More