CLASS 14-20

Law:
Definition of Law:
Law is a system of rules that are that are enforced through social institutions to govern
behavior. Laws can be made by a collective legislature or by a single legislature,
resulting in statues, by the executive through decrees and regulations, or by judges
through binding precedent, normally in common law jurisdictions.

Civil-Criminal Law:
Definition of Civil law:
Civil law deals with the disputes between individuals, organizations or between the
two in which compensation is awarded to the victim.
Definition of Criminal law:
Criminal law is the body of law that deals with crime and the legal punishment of
criminal offences.

Purposes:
Civil Law:
To deals with disputes between individuals, organizations or between the two in
which compensation is awarded to the victim.
Criminal law:
To maintain the stability of the state and society by punishing offenders and deterring
them and others from offending.

Case filed by:

Civil Law:
Private party.
Criminal law:
Government

Decision:
Civil Law:
Defended can be found liable or not liable, the judge decides this
Criminal law:
Defended is convicted if guilty and acquitted if not guilty, the jury decided this.
Types of punishment:
Civil:
Compensation (Usually financial) for injuries and damages, or on injunction in
nuisance.
Criminal:
A guilty defendant is subject to custodial or noncustodial punishment, in exceptional
cases, the death penalty.

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Example:

Civil:
Land lord/ tenant disputes, divorce proceeding child custody proceeding, property
disputes, personal injury etc.
Criminal:
Theft, assault, robbery, trafficking in controlled substances, murder etc.

Appeals:
Civil:
Either party (Claimant or defendant) can appeal a court’s decision.
Criminal:
Only defendant may appeal a court’s verdict. the prosecution is not allowed to appeal.

The sources of English law:

1) Custom/common law
2) Equity
3) Legislation
4) European law
5) Other sources.

Conception of common law and European Union law:

Common law:
The legal system of England and wales is a common law one, so the decisions of the
senior appellate courts become part of the law.
European law:
The UK is a member of state of the European Union (EU), which means that European
Union (EU) law takes precedence over UK law.

The European Convention on Human Rights:

As a member state of the council of Europe, the UK is a signatory to the European
convention on Human Rights (ECHR). The Human rights Act 1998, which can in to
effect in October 2000, enables all the courts in the UK to protect the rights identified
in the ECHR.

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What is an employee?
An employee is an individual who has entered in to or works under a contract of
employment.
A contract of employment is a contract of service or apprenticeship, whether express
or implied, and (if it is express) whether it is oral or in written.

The tests used to distinguish an employee from an independent

contractor definition:
A contract of service is distinguished from a contract for service usually
because the parties express the agreement to be one of service. However, much
depends on the three facts-
1) Control test
2) Integration test
3) Economic reality test
The rights and duties of employers and employee:
The rights of employers:
All employers have the right to appoint and dismiss workers in accordance with
proper procedures and to expect reasonable performance from their employees.
However; employers do not have the right to: -
 Discriminate against existing or potential employees;
 Allow sexual harassments;
 Victimization; or
 Vilification to occur in the workplace.
The duties of employers:
 To provide work to worker according to the contract of employment.
 To provide him with materials and implements necessary for the
performance of the work.
 To pay the worker wages and other necessary payments that should be
made.
 To respect the worker’s human dignity.
 To take all the necessary occupational safety and health measures.
 To cover cost of medical examination of the worker.
 To give the worker weekly rest days’ public holidays and leave.
 When the contract of employment is terminated or whenever the
worker so requests to provide the worker, free of charge, with a
certificate standing the type of work he performed, the length of service
and the salary he was earning.
The rights of employee:
At the time of employment-
 Right to know: Every employee has the right to know of hazards that
exist in their workplace.
 Right to participate: Every employee has the right to refuse if they
believe there is an unusual danger present that does not normally exist
in that work.

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After the time of employment-
 Receive fair wages
 Safe and healthy working conditions
 Join a trade union
 Receive correct holidays and leave
 Treated the same as other employees.

The Responsibility and duties of Employees:

 Honest and trustworthy
 Employee should do a fair day’s work
 Be on time for work
 Respect the property of the employer

What is dismissal?
Dismissal may be identified in three separate circumstances:
1) Actual Dismissal: It is usually fairly clear-cut and can be recognized from
the words used by an employer.
2) Constructive Dismissal: As describe earlier, involves a fundamental breach
of the employment contract by the employer.
3) Expiry of a fixed term contract: Without renewal amounts to a dismissal.

Notice due from Employees:

Employees are entitled to one week’s notice after one month of employment otherwise
notice is the period specified in the employment contract.
Notice due from Employers:
If an employer terminates the minimum period of notice to be given’s determined by
the employee’s length of continuous service in the employer’s service as follows:
Term of Employment Notice period
Less than 6 months 2 weeks
6 months to 1.5 years 4 weeks
1.5 years to 3 years 6 weeks
More than 3 years 8 weeks

Summary dismissal:
It occurs where the employer dismisses the employee without notice.
He may do this if the employees have committed a serious breach of contract and, if so,
the employer in curs no liability.
Example: Misconduct by the employee in their own time may justify summary
dismissal.

Constructive dismissal:
It occurs where the employer, although willing to continue the employment,
repudiates some essential term of the contract and the employee resigns. The
employer is liable for breach of contract.

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Example:
 A reduction in pay
 A complete change in the nature of the job
 A failure to follow the prescribed disciplinary procedure.

Unfair and wrongful dismissal:

Unfair dismissal:
Certain employees have a right to be unfairly dismissed. Breach of that right allows an
employee to claim compensation from a tribunal. Unfair dismissal is an extremely
important element of employment protection legislation.
In order to obtain compensation or other remedies for unfair dismissal the employee
must satisfy several criteria.
 Have been continuously employed for one year weather full-time or part time.
 Have been dismissed. In the case of constructive dismissal, the tribunal may
have to determine this.
 Have been unfairly dismissed. Dismissal may be unfair even if it is not a breach
of contract by the employer. This is up to the tribunal to determine.

Making a Claim:
To claim compensation for unfair dismissal, there are three steps:
 The employee must apply to a tribunal within three months of being dismissed.
 The employee must show that-
o He is a qualifying employee, and
o He has been dismissed.
 Then the employee must demonstrate-
o What was the only or principle reason for dismissal?
o That it was fair reason under the legislation.

Remedies for unfair dismissal:

Remedies for unfair dismissal include-
 Reinstatement
 Re-engagement
 Compensation
An employee who alleges unfair dismissal must present this complaint to an
employment tribunal (Labor court, in Bangladesh) within three months of the effective
date of termination.

Wrongful Dismissal:
If an employee is dismissed with a shorter notice than the statutory or contractual
requirements, or without notice when summary dismissal is unjustified, the employer
can be used for wrongful dismissal.

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Remedies for wrongful dismissal:
Generally, the only effective remedy available to a wrongfully dismissed employee is a
claim for damages based on the loss of earnings. The measure of damages is usually
the sum that would have been earned if proper notice has been given.

Justification of Dismissal:
The following have been taken as justifiable circumstances-
 Willful disobedience of a lawful order
 Misconduct
 Dishonesty, where the employee in a position of particular trust.
 Incompetence or neglect, lack or fails to use skill which he professes to have.
 Gross negligence, depending on the nature of the job, for example, negligently
landing an aero plane.
 Immorality, only if it is likely to affect performance of duties or the reputation
of the business.
 Drunkenness, only if it occurs in aggravated circumstances such as when
driving a vehicle or a train, or is repeated.

What is judicial decisions?

When a judge hears a case before them, the following three-stage procedure is used to
come to a decision.
1) Examine all the facts to determine which are material or most relevant to the
decisions.
2) Consider the law relating to the facts.
3) Apply the law to the facts and come to the decision.
The application of the law will lead the judge to a decision which may or may not
create a judicial precedent.
A precedent is a previous court decision which another court is bound to follow by
deciding a subsequent case in the same way.

Elements of judicial precedence:

Judicial precedence is based on the elements-
1) Reports: There must be adequate and reliable reports of earlier decisions.
2) Rules: There must be a rules for extracting a legal principle from a previous set
of facts and applying it to current facts.
3) Classification: Precedents must be classified in to these that are binding and
those which are merely persuasive.

What things are must be considered when examining a precedent before it can
be applied to a case?

Four things must be considered when examining a precedent before it can be applied
to a case.

1) A decision must be based on a proposition of law before it can be considered as

a precedent.

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 2) It must form part of the case.
3) The material facts of each case must be the same.
4) The preceding court must have had a superior status to the later court.
The tort of negligence:
The law gives various rights to persons. When such a right is infringed the wrongdoer
is liable in tort.
A tort is a civil wrong and the person wronged sues in a civil court for compensation.
The claimant’s claim generally is that he has suffered a loss, such as personal injury, at
the hands of the defendant and the defendant should pay damages.
The tort of negligence, the most significant tort of modern times, tort is an important
branch of the law regulating business conduct.
Negligence is the most important modern tort. To succeed in an action for negligence
the claimant must prove that:
a) The defendant had a duty of care to avoid causing injury, damage or loss.
b) There was a breach of that duty by the defendant.
c) In consequence the claimant suffered injury, damage or loss.
The tort of negligence can be defined as causing loss by a failure to take reasonable
care when there is a duty to do so.

The essential elements of the tort of negligence:

The 4 elements of the tort of negligence:
The following four elements must be established to prove negligence.
1) The claimant suffered a type of damage recognized by the law of tort.
2) The defendant owed the claimant a duty of care.
3) The defendant breached the duty of care; and
4) The breach caused the claimant reasonably foreseeable damage.
NB: The burden of proof will always be the claimant.

Duty

Breach

Causation of Damage

Negligence

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How to Negligence Determined?

Whether or not negligence has occurred is a matter of satisfying for questions-

1) Did the defendant (i.e. the person being used) owe the plaintiff (i.e. the person
injured) a duty of care?
2) Did the defendant breach their duty of care?
3) Did the plaintiff suffer an injury or other damage?
4) Was the injury or damage caused as a result of the breach of the duty of care?

All these factors must be satisfied. If even one is not satisfied, then the plaintiff will not
be able to establish that the defendant was negligent.

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