Evans LJ, Ward LJ, Mummery LJ and David Capps
In a 1999 Court of Appeal decision it was held that s.47 of the Financial Services Act 1986 (the Act) did not create a new, wider duty of disclosure than that already existing at…
Abstract
In a 1999 Court of Appeal decision it was held that s.47 of the Financial Services Act 1986 (the Act) did not create a new, wider duty of disclosure than that already existing at common law or in equity.
Leggatt LJ, Swinton Thomas LJ, Mummery LJ and Joanna Gray
Bishopscourt (BS) Ltd (formerly known as Barings Securities Ltd, BSL) was an indirect subsidiary of Barings plc (the English holding company of the Barings group). BSL and its…
Abstract
Bishopscourt (BS) Ltd (formerly known as Barings Securities Ltd, BSL) was an indirect subsidiary of Barings plc (the English holding company of the Barings group). BSL and its subsidiaries carried out agency and own account futures and securities trading. Barings Futures Singapore Pte Ltd (BFS), a Singapore incorporated company which traded on the Singapore International Monetary Exchange (SIMEX), was in turn an indirect subsidiary of BSL, and, therefore, of Barings plc too.
The purpose of this paper is to examine the nature of the legal relationship tying workers to employers. It explores how the individual who is categorised as an employee is…
Abstract
Purpose
The purpose of this paper is to examine the nature of the legal relationship tying workers to employers. It explores how the individual who is categorised as an employee is distinguished from a self-employed or independent contractor or a worker. The common law tests for classifying employment status are analysed against a backdrop of emerging research literature. Recommendations for reform are provided, drawing from the work of prominent scholars such as Mark Freedland and Simon Deakin.
Design/methodology/approach
The paper reviews court decisions and examines arguments raised in relation to the binary divide between employed and self-employed. The paper is largely conceptual.
Findings
This paper has shown that divergence between law and realities of employment still puzzle modern law reformers and judges alike. The common law test have proved to be inadequate and new solutions have been recommended. One of the suggest solutions is to import the doctrine of good faith into the tests.
Originality/value
The paper makes recommendations that will further refine and clarify the employment relationship in a bid to create a more inclusive “labour law” capable of protecting a wider range of atypical and vulnerable work relations. This paper will inform managers on the challenges in relation to classification of employment status brought about by the growth in atypical work.
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The purpose of this paper is to expose practical and theoretical problems with the range of reasonable responses (RORR) test as applied in UK unfair dismissal law, and to propose…
Abstract
Purpose
The purpose of this paper is to expose practical and theoretical problems with the range of reasonable responses (RORR) test as applied in UK unfair dismissal law, and to propose an alternative interpretation of the test that would resolve these problems.
Design/methodology/approach
Through a close analysis of the purpose and structure of UK unfair dismissal law, and a careful reading of the leading cases in the area, the paper questions whether the law as it is currently interpreted achieves the goals of the underlying legislation. The current interpretation of the law being found lacking, alternatives are considered and evaluated.
Findings
The RORR test, as delineated in the most recent Court of Appeal cases, holds that dismissals are fair unless they are based on a reason for which no reasonable employer would dismiss. This interpretation of the test is internally incoherent; moreover, it fails adequately to promote the goals of unfair dismissal law, which are to protect the dignity and autonomy of employees. An alternative and superior interpretation of the test would hold a dismissal to be outside the RORR if no rational theory of management would condone dismissal on the grounds given by the employer.
Social implications
The paper draws attention to fundamental incoherence in the current interpretation and application of unfair dismissal law, and suggests a new and better approach. If the new approach were accepted by the courts or by Parliament, it could lead to reform in unfair dismissal law.
Originality/value
The paper provides a detailed analysis of the RORR test, a long‐standing and well‐recognized problem in UK unfair dismissal law, and suggests a novel solution that would improve the coherence and function of unfair dismissal law.
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Sophie Childs, Tilak A. Ginige and Hannah Pateman
Welwyn Hatfield Council v Secretary of State for Communities and Local Government [2009] EWHC 966 (Admin), Welwyn Hatfield Council v. Secretary of State for Communities and Local…
Abstract
Purpose
Welwyn Hatfield Council v Secretary of State for Communities and Local Government [2009] EWHC 966 (Admin), Welwyn Hatfield Council v. Secretary of State for Communities and Local Government [2010] EWCA Civ 26 and Welwyn Hatfield Council v. Secretary of State for Communities and Local Government [2011] UKSC 15 (Beesley hereafter) and Fidler v. Secretary of State for Communities and Local Government [2010] EWHC 143 (Admin), Fidler v. Secretary of State for Communities and Local Government [2011] EWCA civ 1159 (Fidler hereafter) are two recent cases concerning deliberately concealed breaches of planning control. The defendants engaged in dishonest and misleading conduct, in an attempt to rely on a loophole within Section 171B of the Town and Country Planning Act 1990 (T&CPA). This study aims to critically analyse two solutions which were created to close the loophole; in addition, this study analyses various alternative remedies that have been suggested, and finally, whether the present law has been sufficient to remedy the situation.
Design/methodology/approach
The T&CPA is a key piece of legislation regulating planning controls; Section 171A-C provides the time limits for taking enforcement action against a breach of planning control. To achieve the above purpose, an evaluation of those provisions will be undertaken in detail. Subsequently, this study will analyse two solutions which were created to close the loophole; firstly, the Supreme Court (SC) decision (Welwyn Hatfield Borough Council v. Secretary of State for Communities and Local Government [2011] UKSC 15) and, secondly, the governments’ decision to amend the T&CPA without awaiting the SC’s decision[1].
Findings
This research concludes that the government should have awaited the SC’s decision before amending statute to prohibit reliance upon the expiration of time where there is an element of deliberate concealment. Additionally, this study suggests that the statutory amendments were not required in light of the SC’s solution in Beesley. As a result of the governments’ ill-considered decision, uncertainty has permeated through the conveyancing process, causing ambiguity, delays and additional expense in transactions at a time when a precarious property market needs anything but uncertainty.
Research limitations implications
The scope of this research is limited to deliberate concealment of breaches of planning control and the four-year enforcement period; whilst considering the consequences of the solutions proposed, this study does not provide a detailed overview of the planning system, but rather assumes prior knowledge.
Originality/value
This study offers a unique assessment of the law relating to the deliberate concealment of planning breaches and offers a thorough criticism of the law with recommendations for reform. Additionally, a variety of alternative solutions are considered. Both legal academics, planning professionals and those interested in planning law will find the paper a thought-provoking digest.
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– This paper aims to examine whether employers are bound to provide references on former employees and the kinds of information they should contain.
Abstract
Purpose
This paper aims to examine whether employers are bound to provide references on former employees and the kinds of information they should contain.
Design/methodology/approach
It arrives at a set of conclusions through considering case law in England and Wales.
Findings
It explains why writing a reference is increasingly the responsibility of human-resource specialists in an organization.
Practical implications
It reveals that employers have a number of options, the choice between which will depend upon the organization’s aversion to risk and its balancing of the obligations felt to employees and their future employers.
Social implications
It considers that, in an increasingly risk-averse culture, more and more organizations are providing minimal information in references on former employees and avoiding value judgments.
Originality/value
It considers the state of the law in England and Wales as regards writing references on former employees.
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This paper aims to compare the law with regard to private property rights and restrictions and public controls in England and the USA, and the theoretical debates that surround…
Abstract
Purpose
This paper aims to compare the law with regard to private property rights and restrictions and public controls in England and the USA, and the theoretical debates that surround them, to understand whether the private land use controls of nuisance and restrictive covenants could have a greater role to play or the public law system of planning is the best way to manage land.
Design/methodology/approach
This paper starts by summarising and comparing, firstly, the private laws of nuisance and restrictive covenants and then laws relating public planning, zoning and takings in England and the USA. It then reviews theoretical approaches taken in both jurisdictions to land use restrictions.
Findings
The paper concludes that private land use restrictions can only play a limited role in land management in England. Scarcity and cost of available housing necessitate a mechanism by which the state can intervene to remove or modify restrictions to enable alteration and development. The structure of freehold ownership in England and the low take-up of Commonhold as an alternative tenure mean that expansion in the use of private land use restrictions to control the use of land is unfeasible.
Originality/value
The value of this paper is that it seeks to provide insight into the contested relationship between private and public law and the relationship between property law and planning.
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The Criminal Justice Act 1993 (CJA 1993) introduces a wide array of offences designed to combat the threat of money laundering. While not the first piece of legislation with such…
Abstract
The Criminal Justice Act 1993 (CJA 1993) introduces a wide array of offences designed to combat the threat of money laundering. While not the first piece of legislation with such a purpose, the CJA 1993 is a major bulwark in the United Kingdom's anti‐laundering legislation, creating several offences for what might at first seem barely criminal behaviour. Furthermore, the Money Laundering Regulations of the same year place an onerous burden on financial institutions to put in place systems to combat laundering.