Business Laws For Working Regulations

Agency Relationship

Discuss about the Business Laws for Working Regulations.

By agreement: When two parties mutually agree to create an agency, it is termed as the agency created by agreement. Since the agency relation is a contractually based relation, hence the relationship must be legal (Forde and Slater 2016). The expression of authority raised in an agency is some of the expressed instructions given by the principal to the agent. Turpin v Bilton (1843) is the matter where the agent was supposed to carry out the instructions of the principal to take out an insurance policy of the principal’s ship but ultimately forgot and the ship sank. It is necessary for the agent to do everything that has an effective execution portraying his duties.

By ratification: The agency is said to be created by ratification when the agent purported to act on behalf of the principal and gets the authorization for the act. The ratification of the principle validates the agency relationship and thus relieves the agent from any personal liability. The formation of an agency through ratification means that the relation of the agency is authorized with legal obligations (Forde and Slater 2016). When the agency through ratification arises, the agent must have professed to work or act under the instructions of the principal. The agent is supposed to have a competent principal to provide such instructions to the agents to carry out any act, liable under the contract and must protect the entirety of the agreement. The transaction of the activity imposed or ratified over the agent must not be illegal or void but should be capable of authorization. Boston Deep Sea Fishing & Ice Co Ltd v Ansell is a matter explaining the act of agent which must have legal ratification with an absence of illegal content.

By estoppel: When the party interested in the agency represents any third party as their agent and deals with the same then the agency is known to be formed with the doctrine of estoppel. Such kinds of agency arise when the parties do not hold any relation with the agency directly but one party represents the other as an agent, and the third party agency depends on upon the representation made by either of the parties in an agency. The estoppel agency gives the agent more authority than the acting principal in the agency.

By necessity: The agency is created out of necessity when the circumstances demand the party to create such with the participation of another interested party, and one party acted as the agent of the other party (Forde and Slater 2016). The necessity agency arises from two circumstances namely commercial and domestic. Since the necessity agency has one party acting as the agent, hence it necessary for the party to act in good faith, Armstrong v Jackson (1917). When the agency arises there is a necessity of the presence of positive aspect to the party as in the necessity agency, it is not possible for the party to seek advice from any acting principle. The need of the agency only arises for those situations when one party is a dependent on the other party, and thus both the parties act under common benefit, Boston Deep Sea Fishing & Ice Co Ltd v Ansell.
The duty of care owned by a defendant upon the complainant: to explain the duty of care owned by the respondent upon the claimant, it is important to take an illustration here, which is a court case law. Donoghue v Stevenson [1932], the claimant Donoghue went to a cafe with her friend who brought a bottle of ginger beer. While the claimant proceeded with the drink, she noticed the decomposed snail float in her glass which made her suffer shock, and she started vomiting after that.  The matter is a highlight due to establishment of two reasons:

Establishing Negligence by the Claimant

Manufacturer owned a duty of care for the customers.

The matter introduced the clause of a general principle of negligence liability.

Another matter Home Office v Dorset Yacht Co (1970) explained that the application of the neighbour principle must be applied to the situation where the claimant suffered some harms. After the decision of the matter, the court came to the conclusion that the negligence must have these three components which are:

Foreseeability

Proximity

Reasonableness

The presence of breach of duty by the defendant: in Nettleship v Weston (1971), the claimant agreed to teach driving to the defendant. But, when the third lesson reason reached, the defendant hit a post and caused some injury to the plaintiff. In this matter, the court some of the facts to determine the presence of the breach of duty:

Surety to reach harm: Bolton v Stone (1951), where the batsman hit the cricket ball over 100 yards also hit the claimant, which shows that the defendant should be more careful.

The risk for serious injury: Paris v Stepney B Council (1951), here the claimant had only one eye and even there a piece of metal went inside from the bus, which shows that more the injury greater caution should be taken.

The cost for avoiding harm: When the defendant avoids the cost of the harm, then it is better to take necessary precautions (Iacobucci and Trebilcock 2016). Latimer v AEC (1953) is a matter, where the factory was flooded, and the defendant put sawdust to cover the flood, but the defendant had a slip in one of the uncovered areas that reached his injury.

The social value of the act of defendant when the defendant does some act for the social value and that is likely to reach him some harm then the risk taken is justified. Watt v Herts CC (1954), in this matter it is observed that the fire brigade carried a heavy jack to the place of the road accident where the lorry overthrew it, and that caused injury to the firefighter. It is observed that the lorry as not capable enough to carry the jack, but the breach of duty shall be observed here because the risk was taken for the social value by the lorry to reach the accident zone as soon as possible.

Claimant received harm due to the breach of duty: The claimant must justify the causation even if there is a breach of duty towards the claimant (Nakar et al. 2015). The claimant must highlight the situation that caused the breach of duty and caused the injury and harm. Barnett v Chelsea Hospital (1969), in this matter the incident is about the three-night watchman who started vomiting after drinking tea after which they are taken to the Chelsea Hospital. But upon reaching there, they were told to go back and see their doctor. The negligence caused death to one of the watchmen after few hours.

Common Law Duty for Both Employers and Employees

Duties of the employee towards the employer:

The common law explains that the employee must be reasonable to the act they do, and they must act by the situation where any faithful employee will act in the same manner.

The employees are expected to stay loyal under the faith of the company and should not disrupt the business by taking part in any industrial action.

It is the basic duty of the employee to disclose the wrongdoing of the other member to the concerned authority even that will result to incriminate the wrongdoers.

The employee must never disclose the confidentiality of the employer to any outsider that may result in the misuse of the information.

The employee must look after the property of the employer; this means that the office or outlet or any other place if they are using then that should be in proper position to be used afterward.

The employees must not take any bribe gfrom outsiders in return for some favor which results in affecting adversely to the business.

The employees must work for the employer and not compete with them.

The employees must always stay prepared to accept the changes when brought into the office for efficient working in the business process. For example, when the employer introduces any technical update for the work, then the employee must cooperate to take the new adoption instead of opposing it.

The employers are liable to carry out their duties with ultimate good faith. The basic duty of the employer is to pay the employee the proper remuneration for the work they deliver to the company.

The employer must not do such work that will spoil the reputation of the employee. The employer should assign only those works for which the employee is appointed in the organization.

The employer must also take care of the health and safety measures of the employee.

The employer and the employee must owe them the contract of duty of mutual trust and confidence.

The employer must give reasonable chances to the employee so that complaints get heard.

The employer must never harass the employee in front of other employees or any senior or junior ranked employee and that leads to lack of confidence and stress (Player 2013).

The employees are liable to provide proper information about the rights and duties under the contract of employment (Freedland et al. 2016). No rights must be hidden, and that should not lead them to provide misguidance to the employees.

The employer must take the employees as their assets who play an important part in the development and continuous growing of business.

Adrian put an advertisement in Free-ads by the advertising law supervised and controlled by Advertising Standards Authority (ASA). The ASA recommends that every advertisement requires having legitimacy, decency, honesty and truthfulness. Hence, Adrian followed the norms of the advertisement rules and posted his interest to sell his laptop in Free-ads. Posting of the advertisement is an invitation or an intention to create a legal relation which is known as the contract. The contract may be social or domestic. The form of Adrian’s ad is social since it is a general invitation to anyone interested in buying his laptop, Balfour v Balfour (1919) (CA). Brian sees the ad and is interested in entering into a business agreement to buy the laptop since he considered the advertising stuff, Jones v Vernons Pools Ltd (1938). Brian wanted to buy the laptop at a price decided after negotiations which are accepted by Adrian, and he decided to sell the same to Adrian. He sends a notice to Brian, which was under the pile of paper unnoticed by Brian until Thursday, so he bought another laptop. Adrian claims that there was a breach of contract which is not applicable in this matter as the intention was not known to Brian regarding the buying of the laptop since Adrian did not mention anything in the first place. On the other end, Adrian can be told that he did not wish to enter into the contract with Brian, Rose & Frank v   Crompton Ltd (1925) (HL). There was no acceptance of the offer after the negotiations (McKendrick 2014). It is a matter of showing interest to the sell, but no consideration of the terms was observed in the first place (Furmston et al. 2012). There was not even any assurance from Adrian to Brian that he will sell the laptop to him only. Hence, in this matter, there was an invitation of an offer but no acceptance, Entores v   Miles Far East Corporation (1955) (CA). Brian was silence about the acceptance like Adrian was silent about the acceptance of Brian’s negotiation in the first place. So silence is not acceptance and does not form a contract, Felthouse v   Bindley (1862).

Arnold can form a company by following the direction as discussed below:

To form and register different company procedures are followed and the primary factor of the registration is that the business registered is identified as an artificial person existing separately from other acting members (Tant et al. 2012). The fact is observed in the famous matter Salomon v   Salomon & Co Ltd (1897).

The formation of the company requires certain formality that includes:

Formation: the formation requires certain documents that have to be sent to the Registrar of the Companies at the Companies House in Cardiff.

The formation o the company required to pay the fees of £15. If the interested party pays £100, then the formation of the company will be complete within one day.

After payment of fees, the Registrar of the company will issue the certificate of incorporation.

A trading certificate is required in case of public company. Arnold will not need the document as he is interested in forming a private company, the documents are issued electronically.

Memorandum: Till 2006, which means before the Companies Act 2006 came in; the memorandum was an imperative document for the starting of business. The memorandum of the association is combined with the articles of the association to create the constitution of the company. The memorandum still exists, and now it defines about the initial shareholders.

Articles of Association: The articles are defined as the internal rules of the company. The company owns the right to form their internal rule. Otherwise, the company act offers the Table A to make the rules in such specified manner. The company even owns the right to change the rights necessarily. The articles are used to make the constitution and required to make the contract between the shareholders and company.

The company name registration: The company must be registered with a unique that must not be similar to any existing names in the business. The name shall be recorded under the business names act 1985. Any existing company who finds that the new corporation uses the same name, and then they can sue against on the ground of tort law. Ewing v Buttercup Margarine Co Ltd (1917) is a matter that explains how similar name can mislead consumers which can lead to the spoiling of the good name.

The company is liable to act within the clauses of the constitution and acting beyond that may conclude the Act as ultra vires, Ashbury Railway Carriage v Riche (1875).

After the registration procedures get over, the company act explained about the necessity of the directors, auditors, company secretary, shareholders and resolutions (Mallin and Ow-Yong 2012). Since Arnold will make a private company, he will have the only director and need not have directors like the public company. He is liable to carry out the duties of good faith, Piercey v   Mills (1920). It is even mandatory to keep a secretary so as to see that the rules and regulation are properly carried out.

The accountants are required after the turnover reaches above £90,000 – £350,000 to send a report to the register of the companies (Hope et al. 2013).

The company requires shareholders holding some of the shares of the company.

The company often makes proposals in the form of resolutions to introduce something new in the provisions and that is done in three ways:

Special resolution.

Written resolutions.

Ordinary resolutions.

The various clauses mentioned here are some of the things that Arnold should consider while making the private company.

References:

Forde, C. and Slater, G., 2016. Labour market regulation and the ‘competition state’: an analysis of the implementation of the Agency Working Regulations in the UK. Work, Employment & Society, p.0950017015622917.

Freedland, M., Bogg, A., Cabrelli, D., Collins, H., Countouris, N., Davies, A.C.L., Deakin, S. and Prassl, J. eds., 2016. The Contract of Employment. Oxford University Press.

Furmston, M.P., Cheshire, G.C. and Fifoot, C.H.S., 2012. Cheshire, Fifoot and Furmston’s law of contract. Oxford University Press.

Hope, O.K., Thomas, W.B. and Vyas, D., 2013. Financial reporting quality of US private and public firms. The Accounting Review, 88(5), pp.1715-1742.

Iacobucci, E.M. and Trebilcock, M.J., 2016. An economic analysis of waiver of tort in negligence actions. University of Toronto Law Journal, 66(2), pp.173-196.

Mallin, C. and Ow-Yong, K., 2012. Factors influencing corporate governance disclosures: Evidence from Alternative Investment Market (AIM) companies in the UK. The European Journal of Finance, 18(6), pp.515-533.

McKendrick, E., 2014. Contract law: text, cases, and materials. Oxford University Press (UK).

Nakar, S., Weinberger, S. and Greenbaum, D., 2015. Legal and Social Implications of Predictive Brain Machine Interfaces: Duty of Care, Negligence, and Criminal Responsibility. AJOB Neuroscience, 6(4), pp.40-42.

Player, M., 2013. Federal Law of Employment Discrimination in a Nutshell, 7th. West Academic.

Tant, M.R., Mauritz, K.A. and Wilkes, G.L. eds., 2012. Ionomers: synthesis, structure, properties and applications. Springer Science & Business Media.