There are different areas of law that are mostly relevant to the respective decision making of the people that are doing business and are at the managerial position in an organisation or may be managing their own business(Allen and Kraakman, 2016). These laws are essential for the business in order to define some unacceptable behaviour, to provide certain and stability, to protect the public and also to provide resolve disputes to the business. Report will include the roles of three main organs of the government that are The Executive, The Judiciary and The Legislature. Further report will include the remedy of specific performance and the limitations that are imposted by the court on this form of relief by referencing to a relevant case and legislation. Report will also include the differences between general partnership and a company with reference to separate legal personality and limited liability. Report will discuss the way an employee can be dismiss
Roles of three main organs of the government
There are three main organs of the government and the British government functions through three bodies that are:- The Executive, The Judiciary and The Legislature. The three branches are divided between The Executive that includes the president, The Legislature that includes the Congress and The Judiciary that includes the Supreme court. All the three organs are playing different roles and are as follows:-
The Executive is the part of the government that is having an authority and responsibility with respect to the daily administration of the state and is led by the president. The basic role of The Executive is that it executes and enforces the law(Quirk and Bridwell, 2017). It is the organ that is responsible for implementing the laws that are passed by the legislature and policies of the government. The Executive is the personnel that is responsible for handling the day running of the nation and also provides the leadership with respect to the government policy in order to response for the respective events. It is basically headed by the prime minister and also includes cabinet ministers, junior ministers, civil servants and also some specialist advisors. The major role of PM is as leader of the nation and head of the government. On the other hand Cabinet is central executive coordinating committee consisting of ministers of state and there role is for the confirmation, coordination, arbitration and information sum up for the respective laws.
Judiciary is the part of Country's government that is responsible for legal system and mainly consist of all the judges in the country's courts of law. Basically it plays an important role to protect the rights of the citizens. The judiciary is the section of the government that is having key role in the settlement of different laws. They examine the cases on the respective citizens who break the laws and for the same they make judgements and decide whether the citizen have broken the law or not. They are neutral with respect to the politics and they are never biased with either side of the cases(Richardson and Sunkin, 2018). In order to protect the civil freedom, the judiciary is independent from the other two organs of the UK government that are The Executives and The Legislature. Judiciary achieves the independence in the United Kingdom by having proper combination of statue, common law, parliamentary rules etc. The Judiciary is playing an important role in interpreting the laws as it stand and violating the judicial independence is not allowed as severe punishment is given for the same.
The Legislation is a law that is passed by the parliaments and is having the responsibility under the constitution to make policies and it is sovereign. The act of parliament creates new laws or may bring changes on the existing laws. There are major laws that are pass through the UK parliaments in the form of Bills and as bill is approved by the house of the parliament, it receives Royal Assent and then it becomes an Act of the parliament(Bankowski, MacCormick, and Marshall, 2016). Basically there are two types of legislations primary and secondary. According to primary legislation, an Act starts as a Bill and that is to be debated and approved by the House of parliament and another type of legislation is secondary that is also known as delegated legislation that are the rules made under an Act of the parliament and these rules can also be changed completely to new Act of the parliament. There are different legislations set by the UK government for the businesses like health and safety act 1974, Sex discrimination act 1975, Trade description act 1968 etc.
The remedy of specific performance and the limitations that are imposted by the court on this form of relief by referencing to a relevant case and legislation
Specific performance is an equitable remedy in the law of contract, here a court issues an order where a party is required to perform a specific act like completing the contracts' performance. It is basically available in the case of sale of land and is not generally available if any damages are alternatives. Specific performance can be in form of any force action and is the most effective remedy in protecting the expectation interest of the innocent party to a contract. It is also known as specialized remedy that is used by the courts when no other remedy is adequately compensated other party(Eisenberg and Miller, 2015). For example if a party is refusing to perform his part of a contract that involves real property may be considered as candidate of the specific performance. This is mainly available when a legal remedy like any monetary damage occurs inappropriately or inadequately.
There are damages that are results of breach of contract and are intended to put plaintiff. Such sort of damages insure some rough measures of compensation that are difficult to measure and prove and also for the insecurity that results from failure to keeping the promises. In the economy of the enterprises, good guesses about the future needs are generally rewarded. Therefore, it is natural expectation that the plaintiff would give or an exact equivalent of performance. Then also specific performance remains an extraordinary remedy because of the different rules that are set by the jurisdiction.
Specific performance is mostly used as a remedy in different transactions related to land, for example sale of land where vendor refuses to convey title.
There are different limitations that are imposed by the court on specific performance with the help of specific relief act:-
- If a party to a contract is unable to perform the whole of his part and the part that is left unperformed is of small proportion to the whole value and admits of compensation in the money, the court may direct the specific performance and award compensation in money for the deficiency(Arbel, 2015).
- If a party is unable to perform the whole of the part and part which must be left unperformed either, through admitting of compensation in money or does not admit for the same, he is not entitled to have decreed for specific performance and court may suit of the other party.
- Specific performance of a contract may be obtained either by any party or the representative in interest or the principal of any party. It may be obtained where the contract is a settlement on marriage or any doubtful rights between members of the same family or any personal beneficially entitled thereunder. It can also be obtained when a company has entered into a contract and subsequently becomes amalgamated with another limited liability partnership.
- It can also be obtained when the promoters of a company have, before its incorporation have entered into a contract for the purpose of the company and its is warranted by the terms of the incorporation.
- Specific performance of a contract can not be enforced in favour of a person who either has obtained substituted performance of the contract under section 20 or who has become incapable of performing.
- Contract basically involves the payment of money and it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court(Rowan, 2017).
- Specific performance of a contract may be enforced against either parties thereto, any other person claiming under by a title arising after the contract. When a company has entered into a contract and subsequently becomes amalgamated with another company or when a company promoters before its incorporation entered into a contract for the purpose of company. Basically such contract is warranted by the terms of the incorporation.
Differences between general partnership and a company with reference to separate legal personality and limited liability
There are different forms of ownership of the business that are recognised by the government of UK. Some ownership includes sole proprietorship, partnership and companies. According to the Partnership Act 1890 of the UK that governs the rights and duties of the people and defines the partnership is defined as the relation that subsists between the persons that are carrying on business in common in order to make profits(Repiquet, 2018).
According to Companies act 2006, a company is registered under the companies act and is defined as an association of two or more persons that are doing business collectively and registered with the registrar of the companies.
There is a major difference between the general partnership and a company are as follows:-
Definition:- Partnership is a type of business where two people own the business. Here owner of the company generally contributes for the resources, management skills. Not only this decision making with respect to operations of the business are made by the owners(Gibson, Kittredge and Witney, 2017).
Pros:- The benefits of partnership are that they are having quality decision making and capital contribution. There is less financial burdens and limited external regulations.
Cons:- The major disadvantage of partnership is that they may face challenge related to the sharing of the profits of the organisation. There is risk of disagreements between the partners and management.
Structure:- There are no structures in the partnership as owners are making decisions. Each partner contributes to all aspects of the business that includes money, property or skills. Each partner shares profits and losses of the businesses(Rahman and Ghadas, 2018).
Start-up cost:- Partners are just required to register business with state and obtain local or state business licenses permits.
Liability:- Here owner is responsible for the liabilities and in case of dissolution of the partnership, partner member will be taken to pay for the liabilities.
Taxation:- Partnership does not pay taxes as losses and profits are passed to the individual owners and they have to pay the income taxes.
Shares:- One can not transfer the shares without having concern of all the respective partners.
Definition:- It is a legal entity that is formed with the help of certain number of people as they come together with same intention of providing services to the potential customers. A company is registered under the companies act 2006.
Pros:-The basic advantage of the company is that it is legal entity and quality of decision making is there. Here shareholders can be employed by the company and taxation rates can be more favourable.
Cons:- The major difficult for the company is that there are strict regulation from the government for these legal entities. The reporting requirements can be complex and financial affairs of the company are public. Profits that are distributed to the shareholders are taxable(Johnson and Zinkhan, 2015).
Structure:-The structure of the company is very complex as there are large numbers of working people that are involved for its formulation. It basically consists of different departments and have overall mission and vision.
Start-up cost:- Company involves high costs in its formulation as many legal requirements are put by the government.
Liability:- Company is legal entity and it shields the owner from being liable for the debts and they do not loose there personal debts.
Taxation:- Taxes of the company cannot be passed to the individual owners of the organisation. Company have to pay both state and national taxes.
Shares:- One can easily transfer shares from one person to another.
The way an employee can be dismissed at law
Dismissing the employees from the organisation can be complicated on bases of different laws. Before dismissing the employees, employers have to observe the guidance that are set out in the ACAS code of practice on Disciplinary and Grievance procedures. In order to have a fair dismissal, it is essential to have one out of the five potential reasons that are mentioned under the Section 98 of the Employment Rights Act 1996 that also includes conduct, capability and redundancy. Employers have to follow a fair procedure and have to allow the employee to make representation on the proposal to dismiss before employer makes any final decision(Specific relief act, 2019).
Section 94(1) of the Employment Rights Act 1996:- According to this act the employees are having the right not to be unfairly treated by the employers and Section 95 ERA 1996 usually specifies the circumstances in which a dismissal takes places.
There are different ways an employee can be dismissed from the organisation by taking into consideration different laws. These ways are as follows:-
- Gross misconduct:- An employee can be dismissed from the company, if an employee commits act of misconduct that is either theft, violence or intoxication of work. They can be dismissed without any written warning or any sort of notice period as such misconduct is not tolerated in the companies. For the same company uses summary dismissal letter. Usually company hear the employee and then establish the facts. Company usually follows fair process as there are chances that employees is not guilty and misunderstanding is there. So company gives chance to the employees so that they are stating their defence to the alleged misconduct(Southey, 2016).
- Redundancy:- This is only applied if an employer stops carrying on the business for the organisation have employed or no more workers are required in the firm. In such situation, process have to be followed before dismissing for the Redundancy by the organisation that includes consultation, pooling and selection. There are situations where business is closing down and there is less work for the employees. In such situations company works to safe the costs and dismiss the employees.
- Statutory illegality or breach of a statutory restriction:- There are situations where employee lose their driving licence or their rights to work in UK expires, company can dismiss the employees by having formal dismiss procedure(Loke, 2018).
- Some other substantial reason (SOSR):- There may be situations in the firm that there is an expiry of a fixed term contract or company want to dismiss the temporary employees in order to allow there original employee to return. In such case employees may be dismissed under the law. Not only this if some personality clash that is causing substantial issue to the business than also company is having right to dismiss the employee by following the process.
- Capability or performance:- There are two reasons to dismiss the employees that includes health and poor performance of the employee. Long term illness may result in difficulty for the employee to do their job, so before dismissing company have to make adjustments and support the employee for its recovery and monitor the situation. If recovery is not seen for long period than only company can dismiss the employee. Company can also dismiss the employee if performance is poor but before dismissing the employee they have to follow performance management process that also includes support and training of the employees. Relevant procedure is required to be followed by the company before dismissing the employees of the organisation.
From the above study it is been concluded that there are three main organs of the government that are, The Executive, The Judiciary and The Legislature. The basic role of The Executive is that it executes and enforces the law whereas The judiciary is the section of the government that is having key role in the settlement of different laws. On the other side The Legislation is a law that is passed by the parliaments and is having the responsibility under the constitution to make policies. Report further includes about Specific performance that is an equitable remedy in the law of contract can be in form of any force action and is the most effective remedy in protecting the expectation interest of the innocent party to a contract. Further report includes major difference between the general partnership and a company on bases of there Pros, Cons, structure, Start-up cost, Liability, Taxation and also Shares. At the end report concludes that there are different ways an employee can be dismissed from the organisation that is on basis of Gross misconduct, Redundancy, Statutory illegality or breach of a statutory restriction, Some other substantial reason and Capability or performance of the employee.
- Allen, W.T. and Kraakman, R., 2016. Commentaries and cases on the law of business organization. Wolters Kluwer law & business.
- Arbel, Y.A., 2015. Contract remedies in action: Specific performance. W. Va. L. Rev., 118. p.369.
- Bankowski, Z., MacCormick, D.N. and Marshall, G., 2016. Precedent in the United Kingdom. In Interpreting Precedents (pp. 315-354). Routledge.
- Eisenberg, T. and Miller, G.P., 2015. Damages versus specific performance: lessons from commercial contracts. Journal of Empirical Legal Studies. 12(1). pp.29-69.
- Gibson, S., Kittredge, G. and Witney, S., 2017. The Private Fund Limited Partnership: a new fund vehicle for the UK. Journal of Investment Compliance. 18(3). pp.75-78.
- Johnson, M. and Zinkhan, G.M., 2015. Defining and measuring company image. In Proceedings of the 1990 Academy of Marketing Science (AMS) Annual Conference (pp. 346-350). Springer, Cham.
- Loke, A., 2018. Disagreement over the Illegality Defence. Journal of Contract Law. 35(1/2). pp.169-182.
- Quirk, W.J. and Bridwell, R., 2017. Judicial Dictatorship. Routledge.
- Rahman, H.A. and Ghadas, Z.A.A., 2018. The Evolution of Partnership Structure; Special Reference to Governance Legal Framework for LLPs. PROCEEDINGS–ICLG 2018. p.511.
- Repiquet, M.D., 2018. Report from United Kingdom: UK Private Fund Limited Partnership 2017–Preserving UK Reputation Post-Brexit?. European Company Law. 15(3). pp.97-100.