Business Law in the UK - Essay Example

OF HERTFORDSHIRE SCHOOL OF LAW WORK FOR of or Registration Number) - Submission) SEMINAR GROUP - (Group Number) SEMINAR TUTOR - (Name of Tutor) SCHEME - (eg LG1/LGPE1/KST1) Business Law 1. EUROPEAN UNION LAW AS A SOURCE OF U.K LAW The United Kingdom joined the European Economic Community on Jan 1973.TheEEC has been renamed the European Union .There are four freedoms central to the EU –freed movement of people ,goods, services and capital. In these areas the U.K has given the EU authority. Like the other member states of the E.U,EU law is bonding within the U.K. The EU is perhaps the U.K`s biggest market for goods and services .Laws that derive from the EU therefore have a direct impact on how U.K business operate. It is important to recognize that while the EU does now govern much of the way business I n the U.K, it is not always as intrusive or interfering as you may be led to believe by the tabloid and certain political parties. Some of the Sources of EU law Treaties-the primary sources of EU law are foundation treaties of Paris and Rome .The treaty of Paris 1951 established the European Coal and Steel community. The treaty of Rome 1957 established the European Atomic Energy community. These agreements set up the EU which define and limit the powers of institutions. B) EU Legislation- This mainly concerned with economic matters as free trade ,agriculture and transport. The treaties set out broad terms the objectives to be achieved and leave many of the details to the council and the commission. These bodies have law making powers which may exercise in accordance with the treaties .Some instruments which may be classified as legislation are:- i) Regulation ;-Are general application ,binding in their entirety and directly applicable in al member states without the need for further legislation .They confer individual rights and duties which the national courts of the member states must protect. Their object is to obtain uniformity of law throughout the member states ii) Directives-Unlike regulation, directives do not have immediate binding force in all member states. They are addressed to member states, requiring the national parliament to make whatever changes necessary to implement the directive within a specified time. iii)Decisions-these may be addresses either to a member state or to an individual or institution .They are formal method of enunciating policy decisions and are binding as those to whom they are addressed. C) The Legislative Process i) EU legislation is the result of lengthy and complex negotiations and consultations involving several council and commission working parties and other committees provided for by the treaties. ii) Briefly the procedure is for the commission to discuss the proposal with officials from member states and other interested parties before adopting it as a formal proposal. D) Interpretation of EU Legislation EU legislation is drafted in terms of broad principle, the courts being left to supply the detail by giving effect to the intention of the legislature .This can be ascertained because regulation based. This is in the interpretation of EU legislation the “golden rule “ and ‘mischief rule’ are applied rather than the ‘literal rule’. TYPES OF LEGISLATIONS WHICH HAVE ORIGINATED FROM THE EUROPEAN UNION In general European Union law is composed of three different but independent types of legislations:- i)Primary Legislation: Primary legislation include ,in particular ,the treaties under the agreements having similar status ,which is agreed by direct negotiation between the government of member states .These agreements are laid down in the form of treaties which are ,then subject to ratification by the national parliaments. The same procedure applies to amendments to the treaties. The treaty of atomic energy community (EUROTOM).A second treaty of Rome 1957 established the European Economic Community (EEC) now contained in the treaty of European Union 1992 consolidated into the treaty of Amsterdam. However the original treaty of Rome has been amended a number of times through:- The single European Act The treaty of European Union-Maastricht treaty Treaty of Amsterdam. Treaty of Nice. ii) Secondary Legislation-These are laws approved by he institution of the European Union through the procedures defined within the treaties .This is mainly concerned with economic matters such as free trade ,agriculture and transport. iii) Case Law- Case law includes judgments of the European court of justice and of the European Court of first instance, for example in response to referrals from the commission, national courts of the member states or individual. These types of legislation comprise of acquis communitarian 1a) Key Features of types of Legislation i) Result of lengthy negotiation and consultation before legislation is passed into law, there are lengthy and complex negotiation and consultation involving several council and commission working parties and other committees provided for by the treaties. ii) Binding as member states:-the other feature of the types of legislation is it binds the parties to it whenever it is unanimously passed. iii) Harmonization of trade: - EU has harmonized trade between members states. EU citizens are free to trade without trade barriers and complicated formalities. iv) Common Currency:-EU legislation brought about uniformity of currency (Euro) which is used as a medium of exchange between member countries. v) Fast/easy disposal of EU member state cases:- Whenever a case arises between EU member state, the parties do not have to approach the international court of justice; European court of justice (ECJ) can hear and determine cases arising out of the parties involved to the suit. In other word there is fast and easy disposal of cases. 1 b) How EU types of Legislation have been incorporated in the U.K Legal system i)The European Communities Act 1972- Provides that any enactment of the U.K shall have effect subject to the directly applicable means that a provision confers directly on individual rights enforceable by them the court of a member state without the need for further legislation by the state . Thus U.K legislation is repealed by subsequent directly applicable legislation to the extent that the two are inconsistent .Therefore U.K has accepted the various types of European Union legislation.E.g Company law is experiencing wide change in the U.K. This is so as to enhance a uniform set of rules applicable to business organization throughout the EU commercial law concerning monopolies and restrictive trade practices. ii) European Convention on Human rights In the past human rights in the U.K have not been contained in any written document or code; rights have not been traditionally protected in two ways ,one by the courts adopting and approach which is that if the law does not prohibit an act then it is lawful and two through the ability to scrutinize any institutional excesses by way of judicial review. Although the U.K is a signatory to the 1951 European convention on human rights. In 1998 parliament passed the human rights Act 1998 which came into 2000 and now incorporates the European law on human rights into U.K law. 1 c) Conflict between Parliamentary Sovereignty and European Sovereignty Supremacy of the U.K Parliament- Parliamentary supremacy is a fundamental principle of he U.K constitution .Parliament may make or unmake any law it wishes and there is no higher legal rule than and an act of parliament or statute. If provisions of an act disagree with decisions of any U.K court, provisions of delegated legislation or customary law, the act always prevails. Supremacy of the European law The European Court of justice (ECJ) has already established its own supremacy over member states before the U.K joined (VAN GEND EN LOOS 1963 Case) .The community constitutes a new legal order of international law for the member states and which the courts are bound to apply. With both ECJ and parliament claiming sovereignty a problem looms. But by looking at what happened when an act of the U.K parliament clashed with a provision of EU la we can examine how the question of supremacy may be answered. FACTOR TAME v SECRETARY OF STATE FOR TRANSPORT (1989) In order to protect fish stocks the EU limited the amount of fish each member could catch. Some Spanish boat owners formed British companies and registered their boat to enable them to use some of the British fishing quota. To stop this the British government passed the merchant shipping Act 1988.This stated that fishing had to have their main place or business in the U.K and 75 % of the shareholders had to be British. The Spaniards objected. The case was referred to the European Court of Justice. The ECJ said that the new law breached EU law. Court had to ignore any domestic law which conflicted with European Community law. Conclusion: European law is supreme over U.K law in matters like this. Parliament gives up the sovereignty so far as European Union Sovereignty or matters are concerned. In the sense, regard is given much more to the EU sovereignty than parliamentary sovereignty where never an issue conflicts the two ,the decision of European Union will prevail. 2.) If James is an employee of the meteor Hotel In the first instance having been under the control of and direction of management of meteor hotel, He always ensured that whenever he is off for one reason or the other he had to cover from the pool of other instructors working at the club. Failure to do so, his slot would be assigned to someone else. By this the control test is met, where by the greater the extent to which a person is under the control and direction of anther person, the more likely he is an employee Secondly, the club is an integral part of the meteor Hotel .It is not an accessory to it .Therefore the person serving in the club should be an employee and not an independent contractor of the Hotel. In WHITAKER v.MPNI (1976) where an artiste was injured it was held that although the circus had no control over the artiste during the act, was integrated into other duties and was therefore a contract of service which also meets the integral test. Where if a person doing the work and the work he does is an integral part of business rather than an accessory to it the person will be an employee. Thirdly: There is the multiple test which favours or shows that James is an employee of the meteor Hotel and by all means possible and is entitled to the benefits of an employee. In this test also known as economic test a person is deemed to be an employee if he meets the factors of this test as explained. Therefore James paying PAYE from his remunerations, working on employers premise, controlled by employers disciplinary code and lack of personal risk cover on his part qualifies him to be an employee. In Ready Mixed Concrete (South East) v. MPNI 1969 each driver of the company was financially assisted to buy his own vehicle. The driver had to wear the company uniform and be available for work when required .They were paid mileage rate for work done for the company. It was held that the drivers were not employee but independent contractors as they were operating at their own financial risk. Further the duration of 6years that James worked at the club should automatically proof that he is an employee and entitled to his redundancy payments. In Nether Mere (St.Neots) v. Taverna & Gardiner (1984) Mr. T and Mrs. G were employed by N ltd as home workers manufacturing boys trousers they worked whenever needed and let the company know when they were taking holiday .They submitted regular time sheet and were paid same rate of pay as the factory workers. The work was an essential part of the factory `s production. The machines used were provided by the company. It was held that there may be a contract of service if ,over a continuous period if regular giving and taking work in accordance with he parties expectations, obligations have been established on the part of the home worker to accept it. The employment protection (part-time employee) regulation 1995 extended the basic statutory employment rights to part time employees as exists for full time employees now part time employees: May bring a claim for an unfair dismissal it employed for one year, and redundancy if employed for 2 years (6h,61 and 62) Have a right to written particulars of the terms of the employment if employed for one month or more Are entitled to a minimum of notice after one month or more. Therefore from the courts how they have determined who an employee is and as per the employment protection (part time employee) regulations 1995, James is entitled to his redundancy payment. In all ways possible he should be treated as an employee of the meteor Hotel and not an independent contractor as the club is run and managed by the management of the Hotel (THE PAGE LIMIT FOR THIS COURSEWORK IS: 9 AGES) BIBLIOGRAPHY Books 1. K. Abbott, P. Norman, et al, Business Law,7th Edition 2002. Articles (Include details of Author/Title/Publisher/Date of Publication for each article) Legislation European Communities Act 1972. Merchant Shipping Section 230 Employment Rights Act 1996 Act 1988 The employment protection (part- time employees) Regulation 1995 Cases Factor Tame Secretary of State for Transport (1989) Grant v Australian knitting mills (1936) Harrison v Macdonald& Evans [1952] Nether mere (St Neots) V. Taverna & Gardiner (1984 Ready – Mixed Concrete (South East) V.MPNI (1969 Whittaker V. MPNI (1976) Other Written Sources Official Journal of the European Communities. A. 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