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Employment law 论文代写高分范文

时间:2016-07-05 12:43来源:EssayPhD团队 作者:admin 点击:
法律的case study主要考察的是对相关条款的理解和运用能力、对案例情况的梳理和定性能力。下面以一篇关于employment law 论文代写高分范文
Bob is a senior design engineer at WHAWAY Ltd, a manufacturer of mobile phones. Since the economic downturn, business has been slow at WHAWAY Ltd. To supplement his income, Bob has been working as a freelance engineer for Michael during his spare time for the past nine months. Michael is one of WHAWAY Ltd’s competitors. Michael has asked Bob to supply him with some sensitive information regarding WHAWAY Ltd’s price strategy and has suggested that Bob joins him in a new partnership business which Michael aims to set up within the next month. Bob is considering the offer made by Michael.
In Bob’s employment contract are the following clauses:
5(a) During your normal hours of work you may not, without the prior written consent of the Company, devote any time to any business other than the business of the Company or to any public or charitable duty or endeavour.
5(b) During the period of your employment you will not, without the prior written consent of the Company, undertake any work or other activity which may prejudicially affect your ability properly and efficiently to discharge your duties and responsibilities. The decision as to whether or not an activity would have a prejudicial effect shall be at the absolute discretion of the Company.
5(c) You will not at any time either during your employment or afterwards, use or divulge to any person, firm or company, except in the proper course of your duties during your employment by the Company, any confidential information identifying or relating to the Company, details of which are not in the public domain, or such confidential information or trade secrets relating to the business of any customer of the Company which have come to your knowledge during your employment.
Advise Bob of his contractual obligations to WHAWAY Ltd. In particular, assess and evaluate his common law duties in comparison to contractual obligations as an employee and the potential outcome of breach.
A contract of employment may be written or verbal and there is not a lawful duty for an employer to supply the employee with a written contract. However under the Employment Rights Act 1996 Section 1(1) a written statement of particulars is required and under Section 1(2) this may be given in instalments but not any longer than two months after the employment has started. Contracts contain ‘terms’ which can either be expressed or implied and it is important for employers to think carefully when creating a contract as it may need to be relied upon in the future should any dispute or ambiguity arise. Daniels (2012 page 35) defines expressed terms as “terms that have been discussed and agreed between the employer and employee” .. “they may not be in writing and they cannot diminish statutory rights”. She defines implied terms as “those that have not been specifically agreed between the employer and employee but are derived from collective agreement, statute, custom and practice and the courts”. Examples of what is considered express terms include the amount of sick, holiday and redundancy pay and the amount of wages or hours expected to be worked. Implied terms are different in that they will be the same for most contracts of employment no matter what the activity is including duties owed to the employee by the employer and vice versa such as the duty to pay etc.
Bob should be aware that under common law there are certain duties owed by him as an employee to his employer WHAWAY Ltd. Emir (2012 page 307) states “Since the relationship between employer and employee is one of trust and confidence the law implies into the contract of employment the term that every employee should serve his employer faithfully”. In regards to all of the clauses and what Bob is currently doing which is working for a competitor in his spare time he is already breaching one of the first common law duties which is the duty of faithful service, Emir (2012 page 308) states that “It is a breach of the employee’s duty of faithful service to compete with the employer while he is still employed”. The cases of Adamson v B & L Cleaning Services Ltd (1995) and Ward Evans Financial Services Ltd v Fox (2001) are examples of not only a breach of faithful service but also of fidelity which will be discussed further on.
Clause one instructs Bob that he is not to devote any time that should be spent in work on any other business or ‘charitable endeavour’ unless he has written consent by the company. This clause set out by WHAWAY Ltd is not reasonable in the way it is worded, as in some cases Bob has a duty to devote his time that should be spent in work to other affairs if it is necessary. One example of this would be jury duty which anyone meeting the specific criteria is obliged to take part in unless there are specific and exceptional circumstances, and to enforce that Bob must have it in writing before he is to attend such activities is not reasonable. If it were found that this clause was unreasonable then the clause may become invalid. However if it was determined to be fair then this case would be similar to Wessex Dairies v Smith (1935) where the legal principle identified was that the duty of fidelity lasts until the employment has ended. Although Bob has not yet breached this duty, he has breached several others relating to this the first one being a duty of mutual trust and confidence. In the case of Malik v BCCI SA (in liq) (1997) Lord Steyn stated “the employer shall not without reasonable and proper cause, conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee” (Painter and Holmes 2012 page 145). The term ‘mutual’ means ‘joint’ or both in agreement so this statement works both ways in that the employee also has an implied duty not to act in such a way that would upset or cause animosity among employer and employee. Bob has broken this duty by working for a competitor even though it may be in his spare time. It should also be recognised that although Bob appears to be a senior engineer, if he is having to work for another company in his free time due to the business not doing as well as it has been then he must be on commission or a zero hour contract as if he was on a fixed term or full time contract his pay would remain the same no matter what hours he worked.
Clause two states that during the period of his employment Bob should not partake in any other work which may affect the way in which he carries out his own work for WHAWAY Ltd. “The modern practice of ‘moonlighting’ whereby an employee undertakes spare-time work outside his employment hours can raise problems, particularly if the work is in competition with the employers business” (Emir 2012 page 318). The case of Gray v C & P Pembroke Ltd (1972) which is similar to Bob’s situation supports this idea that working for a competitor is not deemed acceptable if it is expressed in the contract otherwise, however Frame v McKean and Graham Ltd (1974) found that it was acceptable if it not mentioned in the contract of employment. Cases which would suggest Bob is in breach of his common law duties if followed would be Hivac Ltd V Park Royal Scientific Instruments Ltd (1946), Neary v Dean of Westminster (1999), Lewis v Motorworld Garages Ltd (1986), Reading v Attorney General (1951) and the most recent case of Vignakumar v Churchill Group Ltd (2013). Moonlighting links with the reasoning that a fiduciary duty should exist among employers and employees. Lord Woolf’s view on fiduciary duty is that “The employer is entitled to the single-minded loyalty of his employee. The employee must act in good faith; he must not make a profit out of his trust; he must not place himself in a position where his duty and his interest may conflict; he may not act for his own benefit or the benefit of a third party without the informed consent of his employer” (Brodie 2012 page 1). However there is an argument as to how far this fiduciary relationship goes and it was recognised in the case of University of Nottingham v Eyett (1999) that ambiguous terminology may cause confusion as to the nature of the relationship between employer and employee. Although the common law duties require loyalty, good faith and honesty, to assume that an employee is to give his/her all to their employer and that the contract of employment is a fiduciary one is false. However the case of Helmet Integrated Systems Ltd v Tunnard (2006) is a contrast in to the extent of fiduciary duty that is owed. The cases of Bell v Lever Bros (1931) and Sybron Corp v Rochem (1984) are cases involving a senior member of the team and it is often applied that they have a greater duty owing to the employer to disclose their own misconduct than perhaps an employee would have. In clause two however, the restriction may be considered too wide in that it restricts him from undertaking any work which may prejudicially affect his ability to carry out his work for WHAWAY and says that again it will be at the discretion of the company. It may be deemed un-reasonable to consider that the company would need to be informed of every activity carried out in Bob’s spare time and that it would be up to them to make a decision about how prejudicial it is. Painter and Holmes (2012 page 151) state that “The courts are very reluctant to accept that what workers do in their spare time should be of any concern of the employer as in Nova Plastics Ltd v Froggett (1982). However, sometimes they are bound to do so.” This statement emphasizes that although it is in the interest of the employer to be aware of what their employees do in their spare time, the clause restricting Bob from carrying out any activity in his spare time unless the company has agreed may be to wide and unreasonable.
Bibliography
Textbooks
Brodie, D. (2012) Edinburgh Law Review: The Employment Relationship and Fiduciary Obligations. [pdf] Edinburgh University Press.
Daniels, K. (2012) Employment Law: An Introduction for HR and Business Students. 3rd Edition. CIPD. The Broadway, London.
Emir, A. (2012) Selwyn’s Law of Employment. 17th Edition. Oxford University Press.
Painter, R, W. and Holmes, A, E, M. (2012) Cases and Materials on Employment Law. 9th Edition. Oxford University Press.
Smith, I. and Thomas, G. (2008) Smith and Wood’s Employment Law. 9th Edition. Oxford University Press.
Table of Cases
Adamson v B & L Cleaning Services Ltd [1995] IRLR 193 EAT
Ward Evans Financial Services Ltd v Fox [2001] EWCA Civ 1243
Wessex Dairies v Smith [1935] 2 KB 80
Malik v BCCI SA (in liq) [1997] 3 W.L.R. 95
Gray v C & P Pembroke Ltd [1972] (1350/72) IDS Brief 10
Frame v McKean and Graham Ltd [1974] I.R.L.R. 179
Hivac Ltd V Park Royal Scientific Instruments Ltd [1946] Ch. 169
Neary v Dean of Westminster [1999] I.R.L.R. 288
Lewis v Motorworld Garages Ltd [1986] I.C.R. 157
Reading v Attorney General [1951] A.C. 507
Vignakumar v Churchill Group Ltd [2013] EAT
University of Nottingham v Eyett [1999] I.C.R. 721
Helmet Integrated Systems Ltd v Tunnard [2006] F.S.R. 16
Bell v Lever Bros [1931] A.C. 161
Sybron Corp v Rochem [1984] Ch. 112
Nova Plastics Ltd v Froggett [1982] I.R.L.R. 146
Sanders v Parry [1967] 1 W.L.R. 753
Coleman Taymar Ltd v Oakes [2001] 2 B.C.L.C. 749
Customer Systems plc v Ranson [2012] EWCA Civ 841
Tim Russ & Co v Robertson [2011] EWHC 3470 (Ch)
William Hill Organisation Ltd v Tucker [1998] ICR 291
Symbian Ltd v Christensen [2000] U.K.C.L.R. 879
Christie v Johnston Carmichael [2010] I.R.L.R. 1016
SG and R Valuation Service co LLC v Boudrais [2008] EWHC 1340 (QB)
Provident Financial Group plc v Hayward [1988] 3 All E.R. 298
GFI Group Inc v Eaglestone [1993] I.R.L.R. 119
Euro Brokers Ltd v Rabey [1995] IRLR 206 HC
Evening Company Standard v Henderson [1987] I.C.R. 588
Faccenda Chicken Ltd v Fowler [1985] Ch. 117
Robb v Green [1895] 2 Q.B. 315
Ansell Rubber Co v Allied Rubber Industries [1972] R.P.C. 811
Gibson v National Union of Dyers, Bleachers and Textile Workers [1972] 13 K.I.R. 143
这篇80分的employment law 代写高分论文不仅从employee的角度分析了Bob的哪些行为是可取的,质疑合同条款的公平性,而且从employer的角度分析了Bob的哪些行为违背了合同的精神,对公司造成的潜在伤害,并且分别罗列了很多相关的案例加以佐证,立场中立,做到了critical analysis。
全文有3000多words,由于篇幅太长,只节选了一半 并且reference已经放上去了,由于格式要求 footnote无法放进去,需要employment law论文代写范文全文的同学可以直接联系我们,提供辅导。Employment law论文代写,就找EssayPhD,高分保证。
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