I Think I’ve Been Dismissed Unfairly

When a person is dismissed from their employment, the process must be both fair and legal or it will be deemed unfair dismissal; even if the dismissal was justified.

What Does Unfair Dismissal Mean?

The term “unfair dismissal” is used to cover four main situations where a person is fired illegally while in a protected position:

• The employer’s failure to adhere to the statutory disciplinary procedure;
• Any dismissal the law deems “automatically unfair”;
• A person being dismissed for exercising, or wishing to exercise, a statutory right; and
• Any other reason the Tribunal deems is unfair.

The Statutory Disciplinary Procedure

Following the enactment of the Employment Act 2002 there has been a standard disciplinary procedure in English law, which requires a clear procedure is to be followed when a person is fired. It is acceptable for employers to expand on this process to grant employees more rights but they cannot reduce or otherwise atrophy the rights granted under statute.

Whether they expand on the statutory process or not, employers are required to make their disciplinary procedure available in writing.

The Employment Act 2002 outlines the following disciplinary process for when a problem arises:

1. A written statement must be issues to the employee. This should give details of the problem that has caused the disciplinary process to be undertaken, and must invite the employee to a meeting where they can discuss the matter.
2. Hold a meeting where the problem can be discussed. The employee must be allowed to have a colleague or union representative present, and the meeting must only be held after a reasonable amount of time has passed, to give the employee time to consider their response.
3. After the meeting, the employee must be informed of the employer’s decision. If the decision is not in the employee’s favour, they must be informed of their right to appeal.

Not Everyone is Protected From Unfair Dismissal

Unless a person is dismissed for an automatically unfair reason, they cannot claim unfair dismissal unless they: are an employee (which is poorly defined in law); they have actually been dismissed (which can be difficult to prove in cases of constructive dismissal); and they have been employed continuously for no less than one year at the date of dismissal.

When is Dismissal Fair?

Employment law in England and Wales recognises the fact that sometimes it is necessary to dismiss an employee, and therefore grants protection to employers from unfair dismissal in specific circumstances. However, it should be noted that even where the dismissal could be called fair in law, an employee may still have a case for unfair dismissal if the procedure followed to fire them incorrect.

The reasons the law deems fair for a person to be dismissed are where:

• there is an unresolvable personality clash;
• the employee is continually late for work;
• the employee is incompetent and retraining is ineffective or impossible;
• the employee has been imprisoned; and
• the business changes location, the employee is unwilling to relocate and there is no ‘relocation clause’ in their contract.

Automatically Unfair Dismissal Reasons

Dismissal of an employee because of their sex, sexuality, religion, age, race or gender reassignment (whether real or imagined by the employer or other employees) is automatically unfair in law. In some rare cases it is possible to argue that the position has a genuine occupational requirement that the employee would not be able to fulfil, but this is not possible in the vast majority of cases.

The various statutes in employment law state that the following cases are also likely to be automatically unfair, so care should be taken where an employee’s dismissal procedure falls into these categories:

• Undertaking certain trade union activities;
• Exercising, or wishing to exercise, a statutory right or duty, such as parental leave or jury duty;
• Exercising health and safety regulations, or requesting they be exercised;
• pregnancy; and
• being, or being suspected of being, a whistleblower.

Where a case of automatic unfair dismissal arises, protection is not limited to employees with a year or more on their service record. Protection begins from the interview process onward, and employers are required to treat potentially troublesome situations with care if they wish to avoid liability.

Unfair dismissal is an umbrella term for a variety of protections that seek to address the growing problem of discrimination and malpractice in the workplace. It covers a vast array of situations and while it can seem complex at first, it is merely a remedy to the problem of poor employer-employee relations that is easily avoided by care, due diligence and treating everyone fairly.

In 2006, Random House Group, publishers of Dan Brown’s incredibly successful novel The Da Vinci Code, found themselves at the centre of a major lawsuit for alleged copyright infringement. Two of the authors of The Holy Blood and The Holy Grail (the third author declined to take part in the suit) brought a case against the Da Vinci Code publisher over the similarity between their own work and six chapters of the 2003 novel.

At trial, the judge found in favour of Random House and denied the HBHG authors leave to appeal. However, the authors were able to convince the Court of Appeal to hear the case on the grounds that the trial judge (who famously inserted a ‘code’ of his own into his judgment) has misdirected himself on the law he was to apply in the case. Consequently, Baigent and another v. Random House Group Ltd [2007] EWCA Civ 247 was heard in the Court of Appeal the following year.

What Constitutes Copyright Infringement?

For a copyright infringement case to be made out, two important factors must be proved. Firstly, the claimants must show that not only does the defendant’s work contain material that is also in the claimant’s earlier work but that the defendant had access to this earlier work while, or before, they created their own work.

In the case of The Da Vinci Code, it is clear that Dan Brown had indeed had access to The Holy Blood and The Holy Grail; and even went so far as to include the names of two of the book’s authors as the name of a principle character in the book.

The second factor that must be proved was more difficult in the Da Vinci Code Case, however. In order for copyright infringement to occur, the material appearing in the later work must form a “substantial part” of the earlier work. To understand what will be regarded as a “substantial part” of the work, we must look at an earlier case.

The Definition of a Substantial Part of a Work

In Designers’ Guild Ltd v. Russell Williams (Textiles) Ltd [2001], the House of Lords considered the question of what constitutes a “substantial part” of a copyrighted work. Here Lord Hoffmann ruled that a “substantial part” can be a wide-ranging concept, stating: “can be a feature or combination of features of the work, abstracted from it rather than forming a discrete part”.

From this it can be seen that the overarching plot of a novel is unlikely to be a “substantial part” of a work, but original elements in it may be. Taking a well-known example, the concept of a band of rebels fighting against an evil empire will likely not be a substantial part of a copyrighted work; but the concept of the Jedi as warrior monks with amazing powers would.

To quote Lord Hoffmann again: “it is an idea expressed in the copyright work” that defines what is, and is not, a “substantial part”. The key word here is not the idea but its expression. Star Wars has a similar plot to many other works throughout history, but how it expresses that plot is what makes its copyright enforceable.

The Verdict

The Court of Appeal examined the case in detail before ruling that the claimants had failed to prove their case on the second factor. Because they were unable to prove that the six chapters of Brown’s novel contained anything that could be classed as a “substantial part” of their own work, there was in fact no case of copyright infringement to answer.

The Da Vinci Code case is one of many plagiarism and copyright infringement cases in English law but it holds a significant place in the law because it brings together all the factors required to prove such a case in one location. Following this ruling it can be said that English law requires more than for a work to have a similar theme, or even be inspired by, an earlier work and that copyright infringement requires a substantial part of the original work to be reproduced, in terms of how the work is composed and the expressions of its themes.

In short: it is not enough to use the same ideas; it is their expression that counts.

Parliamentary Privilede and the Expenses Fiasco

The lawyers acting for the defence of three Labour MPs who have been charged in the expenses scandal have raised the question of using Parliamentary Privilege as a defence against their prosecution.

Parliamentary Privilege is a legal privilege developed originally from a clause in the Bill of Rights 1689 designed to prevent matters discussed in Parliament from being questioned in court, or MPs being impeached in a court for their actions surrounding matters of Parliament.  It is one of the oldest laws in the United Kingdom, and also one of the most unclear.

The question that has therefore been raised is: are issues of expenses that are supposedly incurred during an MP’s duties, to their constituents and to Parliament, included within “matters of Parliament”?  Many have claimed that no, they cannot; they are ancillary matters.

The defence lawyers have, of course, looked at the nebulous nature of Parliamentary Privilege and raised the point that it may well provide a defence.  This is, of course, what defence lawyers are for; since if there is an adequate defence, to not raise it would potentially lead to a miscarriage of justice.

The Conservatives, and also the Government, have now stated that the law will be changed to clarify the situation; setting expenses clearly outside of Parliamentary Privilege.  However, it should be noted that Parliament does have its own system of punishment for wrongdoing but this seems to have been overlooked in regard to the expenses scandal, in favour of relying on the standard criminal court system.

This may therefore come into consideration if privilege does get brought as a defence against the charges made against these MPs.  At this stage, however, what may or may not come from this when the case reaches the courts is still unclear.

How to Set up a Limited Company

For centuries, the economies of Western nations have been built on the concept of limited liability. The relative security the limited liability company offers in the otherwise turbulent commercial world encourages entrepreneurship and the development of new businesses. With the advent of the Companies Act 2006, it has become even simpler to set up a new limited company than ever before.

What is a Limited Company?

At its simplest, a limited company is a commercial (or, sometimes a charitable or not-for-profit) organisation that can take advantage of limited liability. Limited liability is the idea that a person’s liability for the debts of a company are limited to the amount they have either already paid into the company in exchange for their shares, or the amount they promised to pay to the company in exchange for their shares, if they have yet to fully pay for said shares.

How to Form a Limited Company

The Companies Act 2006 has streamlined the process for forming a limited company. The application process begins when form IN01 is completed and sent to Companies house along with:

• a Memorandum of Association for the new company;
• a set of Articles of Association for the company (although see below for more details on this); and
• the application fee.

At the time of writing, the application fee is twenty pounds if the form and supporting documents are sent by post, or fifteen pounds if the application is submitted via the Companies House website.

What is a Memorandum of Association?

The company’s Memorandum of Association is basically a document that states those forming the company agree to become members of it, taking at least one share in the company each, and that it is their intention to form a limited company under the 2006 Act. In essence, it is a statement of intent and becomes a mostly historical document once the company is formed.

The 2006 Act requires that the memorandum be in the form laid out in Schedules 1 and 2 of the Companies (Registration) Regulations 2008.

What are Articles of Association?

A company’s Articles of Association can be seen as its constitution. They set out the company’s working practices with regard to the decision-making process for shareholders and directors. They determine whether there are special rules for share trading, election of directors and many other topics the members deem relevant to the smooth operation of the company.

Under the 2006 Act, all companies must have a set of Articles but need not submit a custom-written set if the Act’s Model Articles are sufficient to fit the company’s needs. Where the Model Articles mostly fit the company’s needs but certain additions or alterations are required, it is sufficient to submit only those special articles that are required.

The Model Articles are currently found in the Companies (Model Articles) Regulations 2008.

The Companies Act 2008 has made the formation of a new limited company as hassle-free as possible. With this streamlined process it is possible to set up a limited company quickly and enjoy the advantages that limited liability has to offer a new business right from the outset.

The Need for Vigilance When Dealing By Post

Anyone who has the misfortune of seeing daytime television in the UK cannot have failed to notice the glut of “sell your gold!” adverts that plague our airwaves.  The fact that there are now so many of these companies should be warning enough that their customers are not getting a fair deal but now the Office of Fair Trading is investigating, the sheer size of the problem will no doubt soon come to light.

These companies, and others like them in various fields, need to be handled carefully if at all.  They raise the issue of the average British person’s usual lack of knowledge of how the law works and what legal protections there are for dealing at arm’s length.

The Three Stages of Contractual Negotiations

The first thing to bear in mind is the difference between an agreement, an offer and an invitation to treat, because these three things not only form the basis for a contract but are also treated very differently in law.

Contractual negotiations usually begin with an invitation to treat.  Put simply, this is a statement that you are open to negotiations on a certain deal and others are invited to make you an offer.  In the case of one of these gold-buying companies, the invitation to treat would come in two forms: the company advertising its services, and you sending them your gold.

Note that by sending them your gold, you are saying you are interested in selling it if the price is right.  It is important to remember that not only have you yet to state outright that you will sell your gold but you have certainly not agreed on a price for it.  One of the reasons for the OFT’s investigation of these companies is that some companies are apparently trying to make declining their pitiful offers very difficult.

At this stage of the proceedings, you have the right to reject their offers and get your gold back, no questions asked.

The Offer

The offer is when one side states their terms for the deal, and the other side gets to choose whether or not to accept them.  In terms of these gold-buying companies, the offer comes not when the customer sends the gold to the company, but when the company states how much they are willing to pay for the gold that has already been sent.

An offer can be accepted or rejected at any time, unless an agreement has already been reached or the offer has been superseded by another offer (whether better or worse).  Rejecting an offer need not end negotiations and both parties are free to extend further offers to one-another, but once rejected the same offer cannot subsequently be accepted unless it is re-submitted.

At this stage, you still have the right to reject the company’s offer and get your gold back.

When is an Agreement Reached?
An agreement is reached only when both sides accept the terms and agree to be bound by them.  It is as simple as that.  Once an agreement is reached however, it cannot be ended without the consent of both parties.

What If The Company Refuses to Return My Gold?

It is clear from the news reports surrounding the OFT’s investigation that some companies are “not honouring” the customer’s right to refuse their meagre offer (which can be as low as 6% of the true value of the gold) and get their gold back.  Recalling that until an agreement is reached, the customer has the right to refuse the offer to buy, it is clear that the customer still owns the gold until the offer is accepted.

It should therefore be clear that if the customer owns the gold and the company refuses to return it, the company has stolen it.  Their refusal to honour your right to have your property back is therefore a criminal matter.  Discuss it with the police if this happens to you.

In summary, it is clear that vigilance is always necessary when making a transaction; be it to purchase something face to face or at a distance through the post or the Internet.  Get as much information from the other party as possible before handing over your money or property and in the case of selling gold, always look for a better deal than these companies are offering.  After all, if they can make a huge profit from your gold, so can you by cutting out the middle man.

Why a Snail is Important to Consumer Law

While the majority (if not the entirety) of negligence lawyers in the UK are now well aware of the neighbour principle in establishing a duty of care, this was not always the case.

Before the famous 1932 case of Donoghue v. Stevenson, whether a person owed a duty of care to another person was decided using the Hart approach; a significantly more complex device.

The Hart Approach

In Definition and Theory of Jurisprudence, H.L.A. Hart argued that trying to clearly define what a legal right or a legal duty was would lead to immense problems, and that instead the law would be better served by rejecting the idea that there was a ‘one size fits all’ definition.

He instead argued that while there would be a ‘core’ definition of any given concept, such as a legal duty, there would be a far larger penumbra or ‘grey area’ in the law; and therefore definitions must be loose in order to adequately cover these situations.

The problem in this respect is that grey areas lead to ambiguities in law. As P. Harris states in An Introduction to Law, signs stating “No vehicles may enter this land” may be designed to prevent cars from entering, but Hart’s approach could just as easily be used to successfully argue for the banning of aircraft. Clearly a more structured approach is in order.

Enter The Snail

In 1928, Mrs Donoghue and a friend entered a café in Paisley, where her friend ordered a bottle of ginger beer. The bottle was made of dark glass, preventing its contents from being inspected, and Mrs Donoghue drank a glass of the ginger beer before pouring out the remainder. On pouring, she discovered the decomposing remains of a snail (or possibly a slug). The experience left her suffering both shock and gastroenteritis.

Because it was not Mrs Donoghue who purchased the bottle, she had no recourse under standard contract law to pursue a claim for the losses she suffered as a result of drinking the contaminated drink. She therefore brought a negligence case against Stevenson, the manufacturer.

Determining Negligence Under Donoghue v. Stevenson

For her case to be successful, she needed to prove a duty of care existed between Stevenson as the manufacturer and herself as the end consumer despite their being no clear contractual line between them.

The case went to the House of Lords, who ruled that a duty of care did indeed exist. In his assessment of the case, Lord Atkin summarised the situation in his famous ‘neighbour principle’ rule of negligence, which states:

“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.”

What is a Neighbour in Law?

So who is “your neighbour” in Lord Atkin’s view? Essentially, this the issue of proximity. While it is true that no-one has a duty in English law to be careful about the entire world, any person who is sufficiently close to your actions, or inactions, and whom you can reasonably be expected to take note of may be deemed to have a right to be taken care of. As Lord Atkin put it:

“[Neighbours are] persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation…”

Essentially, therefore, you are likely to have a duty of care toward anyone whom you should be aware of as potentially being at risk from act act, or inaction, on your part. It should therefore be obvious why Stevenson was found to have a duty of care toward Mrs Donoghue as the end consumer of their product; despite there being no contractual basis for their relationship.

Negligence and Duty of Care in Modern English Law

Since its inception in 1932, the rule in Donoghue v. Stephenson has been refined and the modern method of establishing whether a duty exists between two parties is stated in Caparo Industries Plc v. Dickman [1990] 1 All ER 568.

The rule in Caparo v. Dickman tells us that a duty of care will exist if three key factors are met:

• the likelihood of damage is foreseeable;
• the claimant is not too remote from the defendant; and
• it is just to impose a duty, having regard to all the facts.

Donoghue v. Stevenson was a landmark case that redefined the tort of negligence and streamlined the process of establishing whether a duty of care exists. From this ruling, a new, more manageable form of tort law has been established and the case remains a landmark decision throughout the common law world.

Your Right to a Refund: Defective Product Law and the Sale of Goods Act

So you’ve just bought yourself a new DVD player, or a washing machine, or anything else in fact. You get it home, set it up and turn it on. It doesn’t work. We’ve all been there at some time, right? If you’ve also found that when you try to take the thing back to the shop you bought it from, they won’t give you a refund, read on.

Some stores in the UK cling to the idea that their returns policy somehow trumps the law. Some stores are simply ignorant of what their duty is. They will claim they have a ‘no refunds’ policy and will only allow replacements or ’store credit’ but it is not their decision to make, it’s yours. This goes for online and catalogue purchases, too.

Buying Goods by Description and Online

With the Internet being such a big player in the shopping lives of many people, it is important to understand just what your rights are. Under section 13 of the Sale of Goods Act 1979, all contracts for sales of goods by description (which covers most, if not all, goods purchased on the Internet) have a condition attached that the goods delivered to the buyer will actually match the description provided.

Because this is a condition, as opposed to a warranty, the buyer is granted four specific rights when faced with a defective product:

• the right to return the goods;
• the right to a refund;
• the right to claim damages (but only when the product has caused a loss); and
• the right to terminate the contract.

So, if you were to buy a brand new washing machine and when it was delivered and set up correctly, it promptly flooded your kitchen and ruined your new kitchen floor, you would be within your rights to return the washing machine and get not only your money back (or perhaps a replacement washing machine, if you still trusted the shop) but also the cost of replacing the damaged floor.

The usual rules on minimising the damage count here, of course; so it is best to try to keep any damage to a minimum, otherwise you risk having to front some of the cost of repairs yourself.

Unsatisfactory Quality and Goods Unfit for Purpose

When buying something in a shop, it should go without saying that anything you buy should live up to reasonable standards of quality. Similarly, if you specifically state to a salesperson that you want to buy a DVD recorder, they should sell you a DVD recorder and not a simple DVD player. It sounds simple, but unfortunately not everyone plays by the rules.

Section 14(2) of the Sale of Goods Act 1979 inserts another condition into all sale of goods contracts; this time requiring that all goods purchased be of “satisfactory quality”. Whether the goods in question are of satisfactory quality will, of course, depend on the circumstances but if something is bought brand new and does not work, it is reasonable to suggest that it is not satisfactory.

Meanwhile, the condition that a product be reasonably fitness for any purpose stated to the seller prior to purchase is inserted by Section 14(3) of the 1979 Act. Because of this, anyone sold a DVD player when they clearly stated that they wanted a recorder would be able to demand a refund on returning the product. As defective product lawyers across the country will attest, consumer protection law is not limited to mere faulty goods.

Can you lose these rights?

The right to reject the goods and terminate the contract cannot be taken away by any store policy or a ‘no refunds’ sign (no matter how prominent) but there are still two situations where they can be lost:

• Failure to report dissatisfaction in a reasonable time; and
• Altering the goods to such an extent that they cannot be returned in the same state that they were received.

As with the question of what constitutes “satisfactory quality”, what can be regarded as a reasonable timeframe to express dissatisfaction will depend on the circumstances. Altering the goods, however, should be mostly self-explanatory. Suffice to say opening the packaging is unlikely to count in most cases.

The Legality of a No Refunds Sign

At this point, you may be wondering what the point of a “no refunds” sign is if it has no actual legal standing. The simple fact of the matter is that some people either don’t know what the law is, or don’t care. Sometimes they fall into the latter category and hope their customers fall into the former. It is therefore a good idea to remember about the Unfair Contract Terms Act 1977.

Section 6 of the 1977 Act deals with exemption clauses (also referred to as exclusion clauses). The section specifically counters any attempt to get around sections 13 and 14 of the Sale of Goods Act 1979 when dealing with a sale between an individual and a business. Because of this, a store returns policy limiting returns to store credits or refunds is null and void; no matter how many notices are displayed.

As if that was not enough (and probably because some people simply won’t be told), the Consumer Transactions (Restrictions on Statements) Order 1976 makes it a criminal offence to use a void clause in a consumer sale of goods agreement. There really is no excuse for trying the old “we don’t do refunds” trick now.

In short, the Sale of Goods Act 1979 combined with the Unfair Contract Terms Act 1977 gives consumers the right to return goods for a full refund if those goods are faulty. This right cannot be taken away by purported terms in any sales contract, but they will disappear if the buyer delays too long before returning the product, or alters it in a substantial fashion. It is therefore best all ’round if faulty goods are returned promptly.