1963 conflicts with statute from 1953

    • Sponsored by Dentist Calgary
    • Here we solve this by implied repeal.
    • But somtiems better way would be to do what you do if contradiction within one statute- effecting a reciprocal adjustment, but that throws up problems fo its own, eg, where to stop?
    • One clear lesson comes through: Legislative carelessness about the jibe of statutes with one another can be very hurtful to legality and there is no simple rule by which to undo the damage.   Best to speak of “inconvient” or “repugnant” rather than contradiction.
  • To determine when two rules of human conduct are incompatible we must often take into account a host of considerations extrinsic to the language of the rules themselves.
    • At one time the command “cross the river but don’t get wet” was repugnant, today with bridges this is possible.
    • But appreciate that it is not just a technological matter. If you tell a man to jump with feet on ground, includes entire institutional spectrum- but how to reconcile this with  the new years jan 1 e.g and claiming that there was actually a legislative oversight would be instructive. ?? you didn’t get this last paragraph.
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Terms of an employment contract

EXAM TIP in exam we may have to amend/criticize a contract – must give reasons why

changing things ( Visit Notary public London today )

Advising an e/er before taking someone on:

1. References from former e/ers

2. Minimum wage

3. Holidays in contract (minimum of 20 days including 8 bank holidays = 12 min days)

4. Entering into a contractual agreement with potential e/ee

5. Everyone has a contract wither written or oral – bit of both ?

6. It’s easier to have contract in writing to prove the terms = better for e/er and e/ee

7. e/er must give s1 ERA written statement of terms to e/ee within 2 months of start of

employment if no written contract but there is an oral contract

8. if e/ee has written contract s1 state of terms not needed

Oral Contracts

The binding terms are those: terms implied by statute

Express terms agreed by the parties

Written Contract and s1 Statement of Terms

Should include all of those terms provided for in s1 statement see appendix A in RB 235

ALSO CONSIDER ALL THE FOLLOWING POINTS FOR INCLUSION:

Duration clause – for indefinite contracts put in notice period required and

ALWAYS find out how long the contract is for

Fixed term contracts – before October 2002 any waiver of redundancy rights were

allowed. After this date they are invalid.

a. BREAK CLAUSE – can have a list of circs where it can be terminated – ie,

bankruptcy

b. NOTICE BREAK CLAUSE – Break clause but where either party can give notice

to terminate (only usually get these in longer term

contracts such as 5 years)

c. WAIVER CLAUSES – saying e/ee wont claim R BUT as of October 2002 they are

INVALID (ERA 1999) Waiver clauses are still valid and

enforceable if your contract was entered into before October

2002

Directors Service contracts Watch out for directors service contracts which have to be

approved by the board.

no notice period as both parties committed to it

Duties and mobility * Job definition needs to be stated and whether it can be

changed.

Time devoted to duties * Needs to be stated

* Also needs to be an express term to say whether they are

restricted in taking part in any other business during their

employment

2

Qualification * If a qualification is needed it must be expressed in the

contract

Place of work and mobility * s1 says that it needs to be stated

 Important in terms of redundancy situations

 Where there is no mobility clause a court unlikely to

imply one.

 The only term which is probably implied is that they

should be employed within a reasonable distance of his

home. Depends on how accessible the place is.

Remuneration, illness and These must be notified to employee

Holidays How is wage calculated

When is payment due ie weekly or monthly

Benefits which the employee is entitled to

Deductions from wages

a) can't make any deductions unless employer is authorised

by statute (PAYE and NI)

b) authorised in employees contract

c) worker has previously signified in writing his consent

s17 ERA 1996 for workers in retail for cash / stock shortages

recoupment must be provided for in the contract and must

not exceed 1/10 th of the employees gross wages.

Sick pay must be defined. What is the employer prepared to

pay and for how long.

SSP presently stands at £64.35 after 3 days off sick.

Holidays – minimum is 4 weeks which includes bank holiday.

Pension , car, gym Contract should specify whether one is available.

Inventions and discoveries Employers need to state whether any invention or discovery

which, is made in the course of employment belongs to the

employer

Policies – ie, complaints (see below), drug/alcohol use/abuse,

health and safety, email abuse, phone calls, internet abuse,

dress code (beware discrimination), children on premises

(beware of injury)

– MUST balance with Article 8 HRA (right to family life)

when checking up on e/es – ie, phone abuse, e/ee may

need to contact family member very urgently

– E/ee needs to be able to locate these policies which can

be a problem if its an oral contract

– E/er needs to be reasonable

Complaints – Employee Act 2002 – from October 2004 all e/ers must have a

minimum grievance and complaint procedure whereas at the

moment e/ers only need one if they have more than 20 staff.

Problem re this is that if there is only 1 boss and an e/ee is not

happy, who do they complain to ?…. it is a grey area at the moment

and this new Act will hopefully resolve it

3

– Main details can be found in Encyclopaedia of Forms and

Precedents

Written statement of terms

1. Must comply with s1 ERA (see Appendix A in RB 235)

2. If e/ers don’t comply the e/ee can apply to the ET to draw it up

3. The ET have the power under the Employee Act 2002 (largely into force in October

2004) to fine the e/er or order the e/er to pay 2-4 weeks pay to the e/ee

4. E/ee cannot ask for 2-4 weeks pay straight out, it will only be tagged on to a

substantive claim (such as UD)

5. If the employee doesn't receive one then there is no penalty but the employer is

vulnerable at a tribunal

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Restrictive Covenants

General Rule: Void unless reasonable in respect of subject matter, time and distance.

See Chart ????? (ask Linz re this)

EXAM STEPS TO FOLLOW re –ve covenants and their enforceability

Enforceability – MUST mention steps 1 + 2 in the exam !!!

1 st step An employer must have a legitimate business interest to protect

(e.g. trade secrets, goodwill, customer connections)

What is e/er claiming rights over ? ie, a salesman knows and deals with customers face

to face and could potentially give details re deals,

customer base to new e/er and then undercut

former e/er and take business away

Ie, a research + designer for a drugs company

working in a medical capacity has lots of secret info

not in the public knowledge

2 nd Step the restraint must be reasonable

– must be no wider in protecting the type of work

– no wider than necessary in time and area

– If they are drafted too widely then it may be void.

– If the Court decides its unreasonable the whole clause could fail

ie – senior management in a coach company, e/er says after leaving

that he cant work for any coach or tour operator in a 3 mile radius

for 12 months

– is 12 months too long ? how long till the info goes out of date ?

– if it’s a computer company 12 months is too long as it would be

obsolete as technology changes all the time

– is 3 miles too far ? decide for yourself

– is coach AND tour operator too wide ? yes, too restrictive, basically

stops e/ee working in the coach trade within 3 miles

– you can only stop them working within your FIELD of work

– tour operator is outside the field therefore too restrictive

– if its too restrictive WHOLE clause fails…… unless…….. blue pencil

rule

Blue Pencil Rule you can use this rule in some circs to cross out a certain bit of a

clause

Court can sever offending parts of clauses

In WD cases, -ve covenants are not enforceable but implied terms

still are

in the above example, it cant work for crossing out “3 miles” cos the

clause cant operate and wont make sense

it could be used to cross out “or tour operator” as clause still makes

sense, is valid and sensible

if it leaves a gap, the blue pencil CANNOT be used

Cases

Lansing Linde v Kerr

It deals with the meaning of protecting info where e/er worried about whistle blowers.

2

Express covenants can protect info which: – Abogados de accidente Hialeah

1. is used in the trade or business

2. if disclosed would cause real damage to owner of the information

3. The owner had tried to limit its dissemination

FSS Travel v Johnson

 Protection can only be claimed for identifiable objective knowledge with which the

employee had become acquainted during his employment (ie details of customers or

access to secret info)

 Can the e/er identify what information is legitimately protected ?

 Basically, the e/er wanted to protect all the info the e/ee had got while working there

(experience, skill, etc)

 Court said identify something specific rather than general experience and that it MUST be

more confidential than standard info all e/es come across

Austin Knight v Hinds

 A tired to argue that it had a business interest to protect

 A's application for an injunction failed on other grounds that the covenant to prevent

solicitation relating to any persons who at any time had been a customer of the company

or any of its associated companies.

 This failed as it was unreasonably wide and unenforceable as a restraint as H it

restrained H from dealing with all customers even those who H had not dealt with or had

contact with.

 This must be something the employee has learnt whilst in his employment and be

identified before.

 Protection could not be claimed in respect of the skill, experience, know how and general

knowledge acquired as part of his job.

 This is not a reason for preventing someone leaving for a competitor. The employee

could be the talent and the employer can't restrict them from leaving for this reason.

Remedy for breaching restrictive covenants

Injunction + Damages if e/ee reveals secret info e/er can seek damages for losses they

suffer plus any profit the e/ee has made after moving jobs and

breaching the covenants

Garden Leave Clauses

Principle applies mainly to senior members of the company and important e/es

– E/ee has a long notice period (6 months)

– E/ee is paid to stay away and not work anywhere

– his Contract continues while he is at home

– E/er must show he has a legitimate interest to protect if the e/ee argues

against it (ie, confidential info, e/er worried he’ll tell customers he’s leaving)

– Must be an express clause in the contract – it is very unlikely that a Court

will imply this type of clause but it can be agreed between the parties by

consent

– Problem for e/ee is that it could affect his future if he’s off the market and

not working for 6 months

– Clause can be combined with –ve covenants so that an e/ee has 6 months

garden leave followed by 12 months –ve covenants

Remedies for e/er = Injunction and damages (as above)

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Solicitation /Poaching clauses

 Companies may want to put in a solicitation clause or poaching clause into the contract

for when the employee leaves so as to give the replacement a chance at building up a

relationship with clients.

 It may be reasonable to put in a clause restraining them from contacting the clients.

 Check how often the clients are in touch with the employee before the end of the

contract

 If the clients are users of the business weekly then it may only be reasonable to restrain

them from contacting them for 6 months.

 If annually then perhaps restraint for a 2 year period.

 If the clients call the ex-employee themselves then they may not be in breach.

 To overcome this a non-dealing clause could be put into the contract.

 The restriction should only be for the work that they actually do with you.

 The distance should not be wider than what they did for that particular employer.

Effect of restrictive covenants and dismissals

 If an employee is wrongfully dismissed then the employers cannot rely on the contract

but can rely on implied terms in the contract as these continue.

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Pragmatism and Personification

Skeptical Conception.

 

  • Main difference between pragmatism and law as integrity.
    • Pragmatists takes skeptical attitude towards assumption we are summing is embodied in the concept of law (he deinies that past political decisions in themselves provide any justification for either using or withholding the states’ coercive power.
  • Pragmatism as conception of law does not stipulate which of these various visions of good community are sound or attractive.
  • Generally, pragmatism says people never have rights, ppl never entitled to what would otherwise be worse for the community just because judge long time ago said so. They argue that sometimes judges must act “as if people have legal rights” – this is less radical in practice than appears in theory (made radical by realists)
  • Pragmatism is more powerful and persuasive conception of law than Conventionalism, and a stronger challenge to law as integrity.

 

Does pragmatism fit?

 

  • As if rights
    • An as if judge would produce an attenuated (reduce force of) doctrine of respect for statues and precedents. But would also sometimes pretend he is enforcing old and obsolete law when he was really ignoring it. This is just another strategic question for the pragmatic judge.
  • A case study: Prospective Rule-making
    • Could make forward looking rule: prevent future murderers like Elmer to profit but for now allow it. BUT, problem is that people would stop bringing novel cases in which these rules would be announced for the future.
    • Could also make new rules and apply retrospectively, advantage: if people know that a new rule will be applied retrospectively they will behave in accordance with whatever rules they imagine courts would think in the general interest, and this will provide a great part of the advantage of such rules without need actually to enact or adjudicate them.
  • The Old Hurdle
    • Conventionalism failed at hurdle of accounting as story how legal culture develops and changes as a whole. Pragmatism points out that strategies for pursuing general interest that seem obvious  can naturally be questioned and changed.
    • What about other hurdle: what particular judges do about particular cases? Well, pragmatist judge no worry about intention of legislators. Only reason he ever has to enforce statute is to preserve general power of legislature to coordinate people’s behavior.
    • Prag judge will find room for some working theory of precedent, for purpose of instilling confidence in people. But if unclear, no problem to abandon this. If linking two cases results in controversy (McLoughiln), why do it, he says.  Will just look at what is best for community as whole, free from any supposed rights flowing from consistency.
    • But is pragmatism that attractive that it requires that much support?

 

Law without Rights

 

  • pragmatism doe snot reject morality
  • * Important point about prags: prags says that community has actually decided that judges should take prag approach, ie, to delegate to judges the power to decide case in whatever way they think is in best interests for community as a whole and invent as if theories of rights with that purpose in mind.
    • But not true that Americans or Britons decided to delegate leg power to judges in this way.
  • Let’s look closer at prag idea of skepticism about legal rights
    • Not self evident that idea of legal rights is attractive, or even sane! But prag rejects idea that consistency in principle is important.
    • Prags deny that incoherence in principle is equal to injustice.
    • No argument to say that diff prag judges will arrive at difference conclusions in hard cases, of course, but so would any other judge in any other theory.
    • How can we say that consistency in principle is that important for its OWN sake, must answer this if we are to kick prag ass. If we cannot answer this question – then we have to accept Pragmatism.

 

The Claims of Integrity

 

  • We realise, in working towards a just state, that we already belong to a different one, not utopian blank slate.
  • Utopian and political theory share “virtues of fairness”
  • However, ordinary politics adds to familiar utopian theory one crucial point: treat like cases alike!. And Dworkin gives it a grander title: Integrity.
  • Now, if we accept integrity (acting on convictions that inform and shape their lives as whole, rather than capriciously or whimsically) then we can use that to make a case for recognizing rights.
  • Can divide integrity into two more practical principles:
    • integrity in legislation: keeping law coherent in principle
    • integrity in adjudication: asks judges to see and enforce law as coherent in that way. (explains why past matters, seeing past decisions as a body whole, not discrete)

 

Community Personified

 

  • Many people have issue with fact that political integrity assumes a particular deep personification of community or state. It supposes that community as whole can be committed to fairness or justice or procedural due process in some way analogous to the way particular people can be committed to convictions or ideals or projects, and this strikes many as bad metaphysics.
  • For fucks sake: Can I really mean to personify the community in this vivid way? Can i really attribute to state or community principles that are not simply those of most of its members?
    • YES: But must make clear what kind of personification this is.
      • I mean only to endorse a complex two stage way of reasoning about responsibilities of officials and citizens that finds a natural expression in the personification of community and cannot be reproduced by a reductive translation into claims about officials and citizens!
        • g of car company that produces fault and many kills and we don’t now where fault happened. How do we frame question? As Corporate Responsibility, yes, rather than through a direct moral assessment of each individuals record one by one. Because assessing it through CR makes personification not idle.

 

  • Personification at Work
    • So idea of political integrity personifies community in second way, as working personification, because it assumes that the community can adopt and express and be faithful or unfaithful to principles of its own, distinct from those of any of its officials.
    • s of Group responsibilities: blacks and whites feel indebtedness, jews and germans feel debt to them. Also, when we say that community has right to be protected from foreign war, we don’t have particular mode of protection in mind, but just general in some adequate way.
    • Last e.g., we believe political officials have responsibilities we could not defend if we had to build these directly from the ordinary requirements of individual personal morality most of us accept for ourselves and others in non political life.
      • We expect officials actin in their official capacity to treat all members as equals, and if official is self serving we call him corrupt.
      • Not a question of power, because we expect this from any official, no matter what rank.
      • THUS: cannot explain this is we build argument from private morality.
      • WE MUST treat group responsibility as logically priori to the responsibilities of officials one by one.
      • Follow the guidelines published by Abogados de accidentes

 

  • Thus – adjudicate principles mentioned above is our special interest because it provides conception of law antagonist to pragmatism. If that principle can be sustained, prangs must be rejected.
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THE SEMANTIC STING

  • We have following dilemma: In spite of first appearances, lawyers all do accept same criteria for deciding when claim about law is true or there can be no genuine agreement or disagreement about law at ALL, but only idiocy of people thinking they disagree because they attach different meanings to same sound (because leg two crazy, legal philosophers embrace first and try to identify the hidden grounds that MUST be there)
  • Unfortunately, this picture of what makes disagreement possible fits badly with kinds of disagreements lawyers actually have. These losers try to explain away the theoretical disagreement. They say lawyers and judges are only pretending or that they disagree only because case falls in some gray area.

AN IMAGINARY EXAMPLE

  • The Interpretive Attitude
    • Imagine community where members follow set of rules which they call rules of courtesy, e.g. Take off your hat for nobility. Everyone develops complex interpretive attitude toward rules
      • they have value
      • requirements of courtesy, behavior it calls for etc, not necessarily what they have always been taken to be but are instead sensitive to its point.
    • 1 + 2 are independent of one another. But, if accept both, like in story, value and content become intertwined.
  • How Courtesy Changes
    • When full interpretive attitude develops, assumed point acquires critical power and people begin to demand under title of courtesy, forms of deference previously unknown or to spurn or refuse forms previously honored, with no sense of rebellion, claiming that true respect is better served by what they do than by what others did. So change happens, through each interpretative step.
    • Views about proper grounds of respect will change from rank to age or gender or some other property. Ideas about respect may change, internal to external showing of it. Or opinions change about whether respect has any value when it is directed to groups or for natural properties rather than individuals.

A FIRST LOOK AT INTERPRETATION

  • Beyond birds eye view of how tradition of courtesy changes, lets look closer by noticing kinds of judgments and decisions and arguments that produce each individual’s response to tradition and over long periods produce large changes we first noticed.
  • In this chapter: Dworkin offers theoretical account particularly designed to explain interpreting social practices and structures like courtesy, and defends that account against some Fundamental and apparently powerful objections.  “The analysis of interpretation I construct is foundation of book” (pg 50)
  • People interpret in many different contexts, lets see how they differ: conversation, art, science. What we try to do, interpretation of social practice, is like art, try to interpret something created by people as entity distinct from them, rather than what people say. Note, in contrast to science and speech, interpretation of social practices and art is essentially concerned with purposes rather than mere causes
  • One solution to replace metaphor that social practices speak to us is creative interpretation – we listen to the human authors not practices themselves. Dworkin argues that creative interpretation is not conversational but constructive. It is a matter “of interaction between purpose and object.”
  • Thus, a participant will propose value for practice by describing some scheme of interests or goals or principles the practice can be taken to serve or express or exemplify. One person may see in practices of courtesy a device for ensuring that respect is paid to those who merit it because of social rank or other status, another may see a device for making social exchange more conventional.    — Each interpreters choice reflects his view of which interp. has most value for practice, shows in in better light.
  • Constructive account works for other types of interpretation as well: we could say that ALL interpretation strives to make object best it can be, and that interp. Takes different forms in diff contexts because diff enterprises engage different standards of value or success.
    • Artistic interpretation diff from scientific interpretation only cause we judge success in work of art by diff standards than science.

INTERPRETATION AND AUTHOR’S INTENTION

  • Many people prefer popular creative account of interpretation. Objections to Dworkin idea of constructive interp.:
    • interp. Means trying to understand something in special way, discover authors motives or intentions in speaking or acting or writing or painting.
    • interp. Tries to show object or interpr accurately as it really is, not through rose-colored glasses!
  • Dworkin counters this in following outlined structure:
    • Even if we take goal of artistic interpretation to be retrieving the intention of author, we cannot escape using strategies of constructive interpretation!
    • If we do take goal of artistic interp. To be discovering author’s intention, this must be a consequence of having applied methods of constructive interpretation to art, not of having rejected those methods.
    • Techniques of ordinary conversational interpretation, in which interpreter aims to discover intentions or meanings of another person, would in any event be inappropriate for interpretation of social practice like courtesy because it is essential to structure of such practice that interpreting practice be treated as different from understanding what other participants mean by statements they make in its operation.
      • Social scientist must participate in social practice to understand it, not just understand its members.”

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SEMANTIC THEORIES OF LAW

  • Propositions and Grounds of Law
    • Plain fact view: holds that law depends only on matters of plain historical fact, only sensible disagreement about law is empirical disagreement about what legal institutions have actually decided in past. And say that theoretical disagreement about grounds of law must be pretense because very meaning of world law makes law depend on criteria.
    • Semantic theories of Law = Philosophers who insist all lawyers follow certain linguistic criteria for judging propositions of law, have produced theories identifying these criteria.
  • Legal Positivism
    • Semantic theories suppose that lawyers and judges actually agree about the grounds of law.
    • Positivist theories, support plain fact view, that genuine disagreement about what law is must be empirical disagreement about the history of legal institutions. Positivist theories differ about which historical facts are crucial.
    • John Austin: Defined sovereign as some person whose commands are habitually obeyed and who is not in habit of obeying anyone else. And main idea: law is matter of historical decisions by people in positions of political power, has never wholly lost its grip on jurisprudence.
    • HLA Hart picked up Austin account, rejected habitual obedience theory, said that true grounds of law lie in acceptance by community as whole of Fundamental master rule (ror) that assigns to particular people or grounds the authority to make law. g  for Austin 55 mph speed limit true because legislators who enacted that rule happen to be in control there, for Hart it is true because people of California have accepted and continue to accept, scheme of authority deployed in state and national constitutions.
    • Critique of Hart: Nazis obeyed Hitler. Does that mean they accepted a rule of recog entitling him to make law? If yes, Hart and Austin difference elusive. If no, acceptance requires more than mere obedience, thus, suggests that there was NO law in Nazi Germany.
  • Other Semantic Theories
    • Rival of positivist, natural law. But all semantic have this in common: they argue that lawyers follow criteria that are not entirely factual, but at least to some extent moral, for deciding which propositions of law are true. At extreme, justice = law. But obvious not true (e.g., many people think tax system unjust but still law).
    • Second rival to positivism is legal realism. They argue linguistic rules lawyers follow make propositions of law instrumental and predictive. Exact meaning of law depends on context.  “Law is nothing more than what judge had for breakfast.
  • Defending Positivism
    • Legal positivism: Genuine argument about law must be empirical rather than theoretical.
    • Crossed-fingers defense”: Quick answer to why judges and lawyers pretend to theoretical disagreement, because people believe there is always law for everything and judges should follow it. Essentially, this view says that lawyers and judges are systematically conniving to keep truth from people. Bad view because:
      • Wouldn’t it just be easier to show that there is no law? And if so easily exposed, why bother with the charade?
      • No evidence in our sample cases that lawyers or judges actually believed what this defense attributes to them. Gray or Burger not bent on reform, because each said what he took to be the law, interpreted in a certain way.
      • In McLoughlin it was disagreement about what law was, not about what it should be.
    • Borderline-case defences” Second argument: linguistic limitation that becomes exposed in hard cases: lawyers and judges in sample cases only THOUGHT they were disagreeing about law but self description shouldn’t be taken at face value. — idea of using words that are not precise or exact, they permit penumbral cases.  This explains why they disagree in hard cases like present sample cases.     Treats the main question as a question of repair, even if judges themselves might not have conceived it that way.
      • But: if argument true, why would people argue so long, they understand that diff people have diff idea of what a house is.
      • Borderline defense ignores distinction between borderline cases and testing or pivotal cases.
        • Difference like when two people argue if photography is form or branch of art. At end of day both understand its arbitrary. (this is like borderline). BUT, different type of argument is that two camps have a completely different understanding of what art forms are (this is not borderline, these are fundamental differences). Like this – also judges reasoning.
      • Judges in all sample cases disagreed on what makes proposition of law true not just at margin but in core. Not about drawing an arbitrary line.

http://onlinelibrary.wiley.com/doi/10.1111/j.1747-9991.2007.00058.x/abstract

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