Business law deals issues related with public, other organization and government. This regulatory system handles commercial issues and takes appropriate decision to resolve such problems. Current study will discuss conceptual framework of Parliament is sovereign. Furthermore, it will explain role of government in law making. It will discuss responsibility of director in respect to health and safety, equal opportunities and data protection by referring give case scenarios. In addition, suitable legal solution will be given on the bases of given case.
a) Conceptual framework of Parliament is sovereign and sources of law
Parliamentary sovereignty is considered as principles of UK constitution. This principle explains that parliament has supreme legal power of creating laws or making amendments in existing legislation. Every year government of UK announces programmes related to laws by the way of Queen’s speech (Kumie and et.al, 2016). In every October or November this speech is given in parliament. It is very important for each business to follow legal guidelines of government. If they are not following this legislation then it might create consequences of those entities. This concept explains that parliament is the legislative body that continuously work to improve judicial system by making effective laws. It is essential for the court to make judgement by following this regulation; court has no power to overrule such legal norms.
However, parliamentary sovereignty is not included in act of parliament and it is part of common law (Labatt and Forrest, 2016). This has declared that parliament has all power to pass any bill to make any legislation. Parliamentary sovereignty has been accepted as doctrine of constitutional law. Apart from parliament there is no body which has right to make norms or override it. Earlier UK was the country where Queen was having supreme legislative authority but now senior appellate has all power that means court can not declare null and void the decision taken by parliamentary house (Parliamentary sovereignty, 2018).
Sources of law
The English law system has various sources of law such as legislation, common law and EU law.
- Legislation: There are primary and secondary two types of statutory laws, primary delegated regulations are being created by assembly (Lieberman and et. al, 2016). Public acts, local and personal act, privycouncil etc. are various primary regulations. On other hand secondary legislation are subordinate laws which are generally created by primary legislative authorities.
- Common laws: It is another source of law that results from cases. In the 12thcentury William has constructed Common or court system in England (Campbell and Boothby, 2016). Judges have to look upon the case and they had power to make appropriate decision on particular case.
- EU laws: These are related with civil legislation. UK is following EU laws system. This legal system support entities in conducting their operations in smooth manner. International court of justice is part of EU law which works to settle issues of member states. Judges are being selected by general assembly and they have to work on this post for nine year. European law generally deals with cases like contract or employment laws.
- Statutory law: It is another type of source. Insurances, health and safety etc various aspects are covered under this legal source (Crane and Matten, 2016).
b) Role of government in law making process
Government plays significant role in law making. Higher authorities make changes in legislation as per the requirement. Parliament has power to make new norms and alter existing regulations. There are many legislation have been made that applies on business. These laws support organization in smooth functioning of operations and expanding operations in other countries as well (Kumie and et.al, 2016). Higher authorities conduct meeting before passing any law and debate held in parliament. On the bases of this discussion final decision is being taken in the parliament. House of common and House of Lords have power to pass any bill and pas any law related to any situation. If authorities are finding any issue in existing laws then they make amendments for protecting rights of people.
Application of common law in court
Common law is considered as continuous reforming structure. Judges have to make their decision by looking upon legal evidences that are being presented in court. In criminal cases criminal division court takes judgement and their decision is highly depended upon intensity of crime (Labatt and Forrest, 2016). But there are many situations when judges have to take assistance of EU legislation in order to make fair judgement.
Application of statutory law in court
It consists of plain language of the law which can be inclusive of all the provisions that is made applicable to all the aspects of cases that may crop up in the business. Further, based on what is written in the constitution is implemented on it. Further, statutory laws are generally applicable to the cases which are quite new and no case related to it have not been entertained in the past. It is also used to define the terms that must have been used by the legislative bodies which can then be executed on the prevailing cases as well (Kratz and Schöneborn, 2015).
2. Potential implications and impact.
- Health and Safety regulations: The Health and Safety at Work Act is the regulation implemented to govern the occupational health and safety in Great Britain. This act was established in year 1974. The act sets out general duties which employers have towards their employees. The duties are mentioned within Act by the principle of” so far as is reasonably practicable”. This means that employer is not bound to take any measures to avoid or reduce risk if they are technically impossible or if time, trouble or cost of the measures would be grossly disproportionate to the risk. This law makes employer to practice good management and sensible applying of thoughts to tackle the risk associated with their company .
The main requirement of employer is to carry out Risk assessment. The HSE provides a guidelines of steps to be taken while carrying out Risk Assessments:
- The employer can make arrangements for implementing Health and Safety measures.
- It should set up an emergency Procedure.
- Employer should provide clear instructions to their employees regarding the risk assessments. It should provide training to their employees.
There is a Health and Safety Executive(HSE) that works in modernising the structure of health and safety law. The Executive work to safeguard and provide safety and welfare of employees. HSE takes actions by providing supplement arrangement, their three main options are: Guidance, Approved Code Of Practices, Regulations.
- Guidance: It can be specific to health and safety in a industry or my relate to particular process that used in number of industries. The main aim of guidance is to ; Help people understand what the law says. The main aim of guidance by HSE is to comply employer with the law. Further, through guidance it gives technical advices.
- Approved Code Of Practices: They offer practical example of good practices. These practices have special legal statues, for instances; if employer is found guilty of not using these approved code of practices then he/she may be subjected to set punishment under law.
- Regulations: They are the laws approved by parliament. There are certain risk which are been identified by Regulations. It sets out specific action that must be taken against the employer who violates them. JPM needs to follow these regulations within their organisation. It would help company to avoid any legal proceedings and problems.
- Equal Opportunities regulations : Equality Act, legally protect people from discrimination at workplace, education institution or in the provision of training centre. It replaces the previous anti-discrimination laws with a single act making law easier for understanding. Further, it strengthening the protection in some situation. According, to this Act no individual would be discriminated on basis of protected characteristics that is; Age, Disability, Gender, Race, Religion, Permanency and Maternity, etc. There are certain provisions regarding Equality Act these are; Changing the definition of Gender reassignments by removing the requirement for medical Supervision. Applying a uniform definition of indirect discrimination to all protected characteristics (Campbell and Boothby, 2016).
As a part of Equality Act, there are certain provisions related to work, these are:
- Allowing claims for direct gender payment discrimination where there is no actual competitor within company.
- Making pay secrecy clauses unenforceable.
- Introducing new powers for employment tribunals. It means employees can provide suggestions or recommendations that benefits to whole workforce.
It means JPM limited cannot discriminate their employees on the basis of any protected characteristics. Company is oblige to pay equal salary to their employees for their jobs. The law provides certain provisions regarding disability these are; the environment within organisation should harmonised and harassment free so that duties can be adjustable according to Disabled person. Further, it restricts the employer from asking questions that relates to disability of any disabled person. This means JPM has to be careful while employing any disabled person. It must look that it dose not hurt sentiments and dignity of any disabled person. It must avoid questions with regards to disability of that person (Wilson, Zeithaml, Bitner and Gremler, 2012).
- General Data Protection Regulation (GDPR): The GDPR law was came into force on 25thMay,2018 . It was designed to modernise the laws that provide protection to data that relates to individual. It expands the scope of individuals to control how their personal data is collected and processed. GDPR places a new obligation on the company to be more accountable for data protection. This legislation was done to harmonise the privacy laws across the Europe and United Kingdom. In this law there is large amount of changes for public, organisations and business that handles personal information. This act replaces Data Protection Act, 1998. Though this act applies to entire Europe but each individual country has the ability to make its own small changes. The General Data Protection Act will lead many companies to make necessary changes in their privacy policies and features worldwide so that they can comply with existing law. To implement these changes within their privacy policies company can inform their users through various sources that is, through e-mails or by an on-site notifications that shows the required changes.
It is required for every company to comply with GDPR. This process is little long and make take years for company to completely comply to the regulations of General data Protection Regulation. It demands that company must be able to demonstrate compliance with its data protection principles. This involves risk based approach to data protection,. Further, ensuring appropriate policies and procedure are in place to deal with the accountability, transparency and individuals rights provision. Also, it demands organisation to build a workplace culture of data security and privacy.
There is a guidnace by Information Commissioner Officer on how to comply with the GDPR act . This would assist JPM Ltd. To easily adapt and comply with This laws. Further, company is engaged in publishing network . Thus, it become important for company to adopt GDPR Act within their business. It would give company the right to punished and penalised person( if in case any) breaching of their private data (Balcaen, Manigart, Buyze and Ooghe, 2012).
Creditors has legal powers to do what they threatening and the processes for liquidation.
The process of liquidation refers to the winding up of company due to it becoming insolvent in the eyes of their creditors, shareholders or law. There are three types of process of liquidation they are:
- Voluntary liquidation: This is the option available to solvent company when they want to liquidate their assets. In this form of liquidation shareholders feel that the company has no longer purpose and along with directors they decided to dissolve company. This method is adopted by organisation only when it is the condition to pay back all their creditors.
- Creditor's voluntary liquidation: An insolvent company is not in position to pay their creditors and it hold due at time of repayments of their debts. This procedure is started by the directors of company and not creditors. The process undertakes by following certain steps i.e. The directors must revalue all the assets of company. It should place a notice of Liquidation to all their creditors. The director must held meeting with Creditors . Lastly, it should appoint the liquidator to revalue the assets and start the procedure of liquidation (Elliot, 2014).
- Compulsory Liquidation: This procedure is different from Voluntary liquidation as company is been ordered to dissolve their firm. It liquidates their assets under appointed liquidator, who is either appointed by Court or the creditors.
In case of Champion Ltd. The liquidation process will be adopted is Compulsory liquidation as Creditors has threatened to file a petition within court. The legal process of liquidating assets of company would include certain steps:
- The process of winding up begins when a petition files a complaint or petitioner against company. This petitioner would always be the creditors of company. The common reason of winding up of a company is that it is unable to repay it's debts (Lord, 2016).
- Petitioner serves a copy of the petition and in a due course it is required to give notice of this petition in London Gazette. There will be hearing in a court at which Champion Ltd has the opportunity to opposed this petition.
- The judge hears the petition. After hearing both the side it can either may make a winding up order or may dismiss the adjourn. But, if the judge makes a winding up order then the process of liquidation of assets of champion Ltd, starts by appointed Liquidator.
- A liquidator function is to collect and distribute the amount to companies creditors. The fees of liquidator is paid as expense of the winding up and they will be paid out of Champion Ltd. Assets (Richter, 2013).
- Creditors are paid on pro rata basis. They would be invited to provide with details regarding their share from liquidator appointed. Further, if creditor finds that liquidator is not doing their job effectively they can challenged them under law.
To analyse whether there is any possibility that Amber will be getting injunction
Injunction is an equitable remedy which is in the form of court order that generally involves in compelling parties to do or refrain some certain acts. If any of the involved party is not able to fulfil the requirements and fails to comply with the stated requirements of injunction, then in that case one can face criminal or civil penalties. It can be inclusive of monetary sanctions and even imprisonment as well. The party can be charged in the contempt of court. Hence, it can be stated that, injunction is a judicial order where one individual is not able to refrain from the activities that were once included in the contract.
The case of Amber helps in stating that Mr. Anderson, who was the CEO of Amber limited, whose notice period stated that the contract of employment must specify the same that 12 months of notice period must be given by either side of contractual parties. However, a competitor, named Beta Ltd offered him a role of CEO. However, due to commencement of employment and any issue that is related to it, he is not being allowed to serve the notice period of 12 month, which was earlier signed in the contract.
In the given scenario of Amber Ltd, he has the right to file for injunction as their employee Mr. Anderson have already been hired by its competitor, Beta Ltd. Since, the process of injunction referred to as equal request, that have been made by court issuing order to former employee from violating applicable rules and regulations (Campbell, E. and Boothby, C., 2016). It can be performed to prevent other employees from using confidential details of the company. Injunction prohibits any individual from working with any competitors in the company. Since, Mr. Anderson had access to records of clients it can help in preventing any harm made to Amber Ltd.
However, Mr. Anderson have already got involved in serving notice period of 12 month. Even if the company gets involved in sending injunction notice to him, he have right to take legal advice which can help in protecting injunction process. If any action is taken by company, in that case, it may owe penalty or fine to the organization. This process will help in preventing from taking any actions from the side of high court.
Recommendation based on Alternative dispute resolution
Amber Ltd have rights to take other legal actions against Mr. Anderson so that any harm from the side of competitors, due to disclosure of information, can be prevented. Somas to prevent these employees from illegal compliances, following legal actions can be drawn:
It is important for the employee to prove certain aspects so as to keep the agreement valid with the employer. It is important to prove valid contractual relationship. It is due to ineffective preparation of contract and availability of loopholes; the damage has been initiated. Hence, bringing adequate changes in it can help in its effective functions and avoiding breach of contract.
This type of agreement helps in stating that employees also have duty with respect to loyalty on the side of employers. Hence, they must be prohibited from any type of scheming and influencing activities that can provoke employees from shifting their employers. It will also ensure its strong enforceability to the employees (Parliamentary sovereignty. 2018).
In order to prevent any type of soliciting of employees, from the organization, one of the best alternative can be related to entering into contractual relationship with the competitors so that both the parties can get agreed with respect to poach. Including adequate legitimate reasons in it will help in making the overall contract enforceable. It can help companies from facing vulnerable circumstances, with respect to disclosure of material information and transfer of employees from one company to another competitor organization.
This report concludes that Business operates within dimensions of certain laws and regulations. It is obliged for companies to follow these rules and regulations. There are certain laws that protect rights of employer and employees. These frameworks help employer to effectively guides and prevent the risk associated with their organisation. These laws are; Health and Safety Act, 1974, Equality Act, 2010 and GDPR Act, 2018.
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Books and Journals
- Balcaen, S., Manigart, S., Buyze, J. and Ooghe, H., 2012. Firm exit after distress: differentiating between bankruptcy, voluntary liquidation and M&A. Small Business Economics. 39(4). pp.949-975.
- Campbell, E. and Boothby, C., 2016. University law clinics as alternative business structures: more questions than answers? Edited by Francis King. The Law Teacher. 50(1). pp.132-137.
- Crane, A. and Matten, D., 2016. Business ethics: Managing corporate citizenship and sustainability in the age of globalization. Oxford University Press.
- Keating, H., Cunningham, S. K., Walters, M. A. and Elliot, T., 2014. Criminal law: text and materials. Sweet & Maxwell.
- Kratz, P. and Schöneborn, T., 2015. Portfolio liquidation in dark pools in continuous time. Mathematical Finance. 25(3). pp.496-544.
- Kumie, A. and et. al., 2016. Occupational Health and Safety in Ethiopia: A review of Situational Analysis and Needs Assessment. Ethiopian Journal of Health Development. 30(1). pp.17-27.
- Labatt, J. and Forrest, M., 2016. Teaching Business Law from Literature: Lessons to Be Learned from the Novel Mildred Pierce and the Road to Entrepreneurial Success. Journal of Legal Studies Education. 33(2). pp.361-377.
- Lieberman, J. and et. al., 2016. Business law and the legal environment.
- Lord, N., 2016. Regulating corporate bribery in international business: Anti-corruption in the UK and Germany. Routledge.
- Richter, T., 2013. Allocating decision-making powers among creditor classes: the ups and downs of battling claims heterogeneity in Czech corporate insolvency Law. European Business Organization Law Review (EBOR), 14(4), pp.591-612.
- Seifert, B. and Gonenc, H., 2012. Creditor rights and R&D expenditures. Corporate Governance: An International Review, 20(1), pp.3-20.