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How contract law could have prevented the pro gay marriage wedding cake row

May 22, 2015 by Guest contributor

How contract law could have prevented the pro gay marriage wedding cake rowYou may have heard the news. In a landmark decision concerning a case about freedom of expression, court rules Christian cake-makers should not have refused to bake cake with pro gay marriage theme. So it's all about liberty, justice and human rights?

Well, yes, and it plays well at the legal media box office. Everyone loves a good old discussion about justice, laws behind laws, jurisprudence. And some just love a gossipy controversy that involves two competing 'interest groups'. The judge cited 'discrimination' law in his summing up; the cake shop owned by a Christian family had discriminated against a customer for their beliefs.

But notice that the judge made a distinction: "You are conducting a business for profit". Business = objective = cannot/should not discriminate on any ground outside of the business. The laws that we have should, in theory, be about objective resolution of disputes or avoidance of dispute altogether. The law is science, not art. It's not about sociological observation or nebulous crusades for what is 'right'.

And as such, the matter could therefore arguably have been both resolved and explained via simple contract law. No need for any mention of gay rights or Christian agenda; we all have rights in contract law as both consumers and providers of goods or services.

It's worth noting that while the 'gay cake case' is reported as a piece of UK news, the matter was heard in the Northern Ireland courts. That's not quite the same legal system as England and Wales, but the core principles of contract law remain concrete and unchanging, whatever the territory, technology or idiom.

A contract starts with the invitation to treat. In this case, cake shop window displays offers or its website does the same (ecommerce is flexible and problematic and the seller should make clear in its terms and conditions what it defines as an 'offer').

An offer is then made by a customer ('please bake me a cake with big gay rights motif'). Offer gets accepted by cake shop when it confirms it will bake the cake. Money is paid; services and/or goods expected. The end. Money is paid; services/goods provided. It's a formal, binding arrangement, but one with enough stages to give both parties adequate time to understand the ramifications of the agreement and withdraw if need be.

Those processes are defined in landmark cases, the facts of which are cited and repeated by armies of law students. They are fun cases and easily learned. Just for starters see: Carlill v Carbolic Smoke Company and Harvey v Facey (1893); also Pharmaceutical Society of Great Britain v Boots (1953) and Fisher v Bell (1961).

The precise application of these principles is changing in the internet era. Note the famous Argos example back in 1999, when the retailer accidentally advertised Sony TVs for sale online for just £3 (the price should have been £299.99). The lucky buyers who clicked to purchase ended up getting a TV for a ridiculously low knock-down price.

Argos learned its lesson in ecommerce, harnessing old school contract law. To protect itself against a repeat of such events, its terms and conditions worked in a clause alerting customers to the fact that potential pricing errors could occur and in that case it would inform you as soon as possible, giving you the option to cancel. No more accidental bargain prices from Argos.

You have rights as a consumer or as a business providing goods/services. You also have to meet expectations and obligations to match terms and conditions both implied/pervasive (from statute/case law precedent) and explicit (from specific contracts). The law is not designed to protect or promote a particular interest group. It is there to ensure that common rights are upheld as citizens, consumers, businesspeople and so on. We should be able to follow an objective procedure and have assurances that actions can be taken if implied standards are not met.

There are expectations that any person should have met within a contract, if they have entered into one. That was perhaps the real issue here, at least potentially. Perhaps it just doesn't make for controversial headlines or fit the current legal zeitgeist? But contract law's principles are objective, clear and effective – whatever your religious or sexual persuasion.

Copyright © 2015 James Murphy, a graduate of New College, Oxford and the University of Law. He is a contributing editor at www.movieviral.com and www.whatisuniverse.com.

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Is your business ready for shared parental leave?

April 29, 2015 by Mark Williams

Is your business ready for shared parental leave?{{}}Employment law changes introduced on 5 April mean parents who both work now share rights to up to 50 weeks’ leave after having a baby or adopting a child.

Mothers will still take the first two weeks off as compulsory maternity leave (four if they work in a factory), while fathers/partners will also be able to take two weeks' paternity leave. But the remainder of maternity leave can be shared or taken by the father/partner.

Leave and pay

Employees can take shared parental leave in up to three separate periods. By being able to share leave with their partner, they can choose how much time off each of them will take. Leave must be taken before the baby’s first birthday (or within one year of adoption), but no more than 12 months' leave can be taken between the mother and father/partner.

Employees must give at least eight weeks’ notice of any leave they want to take. Unless you offer an enhanced package, employees receive statutory pay, which is 90% of average weekly earnings before tax for the first six weeks, then £139.58 a week or 90% of average weekly earnings (whichever is lower) for the next 33 weeks (if that amount of time is taken). In total, 39 of the 52 weeks will be paid.

Parents can choose to stick with previous standard maternity/adoption and paternity leave/pay, they do not have to take shared parental leave.

Dealing with requests

The Forum of Private Business recommends discussing “the application in depth with the employee before they formally submit a request, as repeated applications will be very time consuming to assess.”

It warns: “Employers have no right to reject an application for continuous leave; shared parental leave can only be rejected on a similar basis to the objections to flexible working. You cannot penalise parents for using SPL or put any pressure on them to cancel or change it. Failure to follow the regulations correctly could result in Employment Tribunal action and considerable financial penalties against you and your company.”

Paternity leave proposals

In February Labour announced plans to increase paternity leave to four weeks if elected in May, as well as increase statutory paternity pay by more than £120 a week to £260, paid for by savings in tax credits.

John Allan, national chairman of the Federation of Small Businesses, said: “Businesses will have legitimate concerns about these proposals and it’s important political parties understand the practical implications of policy changes. Altering paternity leave so soon after introducing shared parental leave has the potential to cause confusion among businesses that are only getting to grips with the most recent changes. We'd like to see shared parental leave have a chance to bed in before seeking to give dads extra time off.

“The reality is that for small businesses in particular, extending paternity leave from two to four weeks makes it much more likely that they will have to buy in replacement staff as they will struggle with absences. That’s a cost that some firms will struggle to afford.”

Grandparental leave?

And if you’re worried about the prospect of male employees wanting to take more than two weeks’ paternity leave, working grandparents could also be granted time off to look after their grandchildren under plans proposed by Labour as part of its ‘women’s manifesto’.

As The Independent explains, thanks to so-called “granny leave”, grandparents could “share up to 18 weeks of unpaid leave, or four weeks in any year, currently afforded to working parents or those with legal parental responsibility”.

According to research from Working Families, reports The Independent, nearly three in five grandparents already provide regular childcare. It adds: “National charity, Grandparents Plus, estimates that 1.9m grandparents have given up a job, reduced their hours or taken time off work to look after their grandchildren, which in some cases has meant a loss in income.”

Next frontier

Labour deputy leader Harriet Harman said: “Instead of having to choose between retiring early and giving up work, or not being part of the daily care for their grandchildren, we’re saying let’s look at the leave arrangements to recognise the pattern of family life. This is the next frontier. It’s the first time there has been a policy which recognises this role of grandparents.”

Neil Carberry, CBI director for employment and skills, said: “Many grandparents play an important role in helping support working families, so these proposals to consider making existing leave entitlements more flexible will help them to balance that responsibility with their own careers. Businesses are looking forward to seeing the details of this policy and making sure it works for both family members and their respective employers.” Labour plans to consult on the proposal if it wins the general election.

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What can employers learn from the Jeremy Clarkson 'fracas'?

April 16, 2015 by Mark Williams

Jeremy ClarksonIf reports are to be believed, it’s probably the highest price anyone has ever paid for a steak dinner. You probably already know the story (how could you have missed it?), but let's remind ourselves...

As reported by The Telegraph et al, on 4 March former Top Gear presenter Jeremy Clarkson verbally abused and physically assaulted BBC producer Oisin Tymon. Why? Things turned nasty after Clarkson couldn't have a sirloin steak following a day’s filming. Indeed, no hot food was available at the Simonstone Hall Hotel in North Yorkshire, with the 55-year-old Doncaster-born presenter not reacting favourably to the offer of a cold platter.

According to The Telegraph, "during a 40-minute rant" Clarkson called Tymon "a lazy Irish ****" and threatened to get him sacked, before punching him. Witnesses allege a string of expletives during the fracas/mêlée (or "dust-up" as fellow Top Gear presenter James May quaintly called it), which reportedly left Tymon with a cut lip that required hospital treatment.

Rosé wine

According to the BBC's official report into the incident, the "physical attack lasted 30 seconds and was halted by the intervention of a witness". The Mail said the Top Gear "production team had been scheduled to take a helicopter to their next location after filming, and return to the hotel at 8pm. However, Clarkson kept the helicopter waiting for three hours while he sat in a pub drinking rosé wine, Channel 4 reported."

Eventually, because the hotel chef had gone home for the evening, its general manager prepared a £21.95 steak for Clarkson, "to calm him down", although the broadcaster would soon pay a far higher price. Clarkson himself called Danny Cohen, director of BBC television, to report the incident, and reportedly tried to apologise to Tymon many times via text, email and in person.

Racism controversy

On 10 March it was announced that Clarkson had been suspended from Top Gear (the rest of the hugely popular series has since been cancelled, despite furore from fans of the show and no lesser a figure than David Cameron, Clarkson constituency neighbour and friend, claiming his children would be "heartbroken if Top Gear was taken off air").

Clarkson's soon to expire BBC contract will not be renewed. He was already on a final warning, following claims he deliberately used a racist word during filming Top Gear’s Burma special in 2014. Amazingly, this came just months after calls for Clarkson’s sacking for allegedly using another racist word in an outtake leaked to the media. Outspoken Sun columnist Clarkson is well known for his un-PC remarks and opinions, of course, including once saying striking public sector workers should be "taken outside and executed in front of their families".

Key lessons

Clarkson is one of the world's most famous TV presenters, thanks to Top Gear's enormous global popularity (watched in 214 countries, it makes an estimated £50m a year for BBC Worldwide in overseas sales and £15m from events and Top Gear Magazine). He's reported to have earned "tens of millions of pounds from the global licensing of the Top Gear franchise". Many new lucrative opportunities will no doubt come Clarkson’s way and the BBC has said Top Gear will continue without him.

This latest unsavoury episode has made Clarkson even more of a 'Marmite' personality. He's loathed and liked with equal passion (more than a million people signed a petition calling for his reinstatement), but whatever his popularity and undoubted broadcasting talent, clearly his behaviour in March was totally unacceptable (which he accepts).

So, what lessons does it offer employers? Well, you need to have a robust disciplinary procedure. Your employees must understand what constitutes gross misconduct (this should be explained within your employment policies and possibly a workplace code of conduct) and know what action your business will take if they cross the line. Everyone should know that violence, abusive or racist language and all forms of unlawful discrimination have no place in your business. But sometimes even having all of the above won’t ensure acceptable behaviour, so, your should remind yourself how to lawfully terminate a employee’s contract. And on that bombshell…

Blog written by freelance editor, copywriter, journalist and Start Up Donut editor Mark Williams.

Photo: Featureflash / Shutterstock.com

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Is it me, or is it hot in here…?

April 09, 2015 by Liz Dawe

Is it just me, or is it hot in here…?{{}}Yes, it’s the standard self-deprecating line from menopausal women, but menopausal symptoms in real life are not much of a joke and can affect the working lives of the 3 million-plus women over 50 in the workplace.

While the symptoms of the menopause are very common, including hot flushes, irregular or heavy periods and interrupted sleep, very few workplaces have any policy on accommodating the needs of women during this phase of their lives.

Despite an employer’s general duty of care to staff, and legislation on treating both genders without discrimination, in practice the menopause is still a taboo subject and women may be reluctant to flag up their needs or difficulties or ask for adjustments to be made.

Simple strategies such as providing desk-top fans where the workplace temperature can’t be regulated or varied, access to cold drinking water, sufficient toilet breaks and facilities for changing clothes or even adapting uniforms, could make a significant difference to women’s experience of the workplace and, consequently, to their productivity.

The physical and psychological changes that many women experience around the menopause can have a significant impact on their mental health and self-esteem. For women and for employers, addressing these issues without blame or ridicule could help employers retain experienced staff and enable women to enter the next stage of their working lives with confidence.

A recent leaflet, produced by Unionlearn with the TUC, looks at the most common symptoms of the menopause, the Health and Safety implications for employers, and suggests ways to support staff affected.

In the name of equality and work-life balance we’ve made great strides recognising the needs of pregnant workers, parents and disabled employees. Maybe it’s time to look at the (usually transient) needs of another significant section of the workforce and shed another taboo.

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Why mediation is worth attempting for couples facing separation

February 19, 2015 by Guest contributor

Mediation{{}}Since the introduction of The Children and Families Act 2014 there has been a significant difference in how family dispute cases are handled, most notably the encouragement and use of mediation.

Because of legislative changes, a separating couple must now demonstrate that they have attempted mediation by attending a MIAM (a Mediation Information and Assessment Meeting) before further proceedings.

This method of settling family disputes relies on both parties mediating with the end goal of forming a joint understanding with issues in dispute.

The benefits of mediation

  • Mediation can prevent children from getting caught in the crossfire of messy divorce proceedings. Where possible, parents try to keep the stress of court proceedings away from their children, but invariably they can have an impact, for example, a child’s performance in school. Mediation can help to minimise this.
  • Mediation also allows you to reach a resolution with your partner instead of letting a court decide what should happen in the future.
  • Often mediation can be much quicker and less expensive than going to court.

When entrenched in court proceedings, parents may become too distracted by who is going to win and lose and may ultimately lose sight of what is in the best interests of the children.

Mediation offers a different approach 

Couples are asked to communicate with respect and understanding and come together to settle issues arising from their separation in a way that is in the best interests of the children (if children are involved).

Mediation provides a more informal setting to resolve disputes instead of the adversarial nature of court proceedings. Therefore, the key to successful mediation is successful communication that never loses sight of the children’s needs and best interests. This will always be facilitated by a mediator, who will maintain a neutral stance throughout.

Common mediation misconceptions

Mediation is never about trying to get a separating couple to try and get back together. Mediation acknowledges that the relationship has ended and that the process moving forward is about resolving unsolved issues such as child maintenance. 

Some couples believe that mediation is a mere tick-box exercise that has to be fulfilled before having to attend court. This is also not true. If mediation proves successful and both parties can reach an understanding, there may be no need to go to court.

There is also a common misconception that mediation cannot cover all aspects relating to a separation, such as settling financial issues or disputes over property. Again, this is not true. 

Mediation can settle property and financial issues or disputes relating to children. If such things can be resolved through mediation and an agreement found between both parties, this can be agreed in a Memorandum of Understanding.

Copyright © 2105 Alun Jones. Alun is director of Cardiff-based niche practice Alun Jones Family Law and after training with Resolution (formerly the Solicitors Family Law Association) he became a family lawyer mediator.

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