Critical context

events occur and he is consequently under a duty of care towards (P)? As stated above it is arguable that the teachers could have prevented a fight from happening if they had not been drunk. Furthermore, even though the teachers cannot reasonably be expected to safeguard against all risks which are not known all factors are to be taken into account. Hence with the invitation of the public to the disco they should have taken further precautions which they did not by drinking. It is speculative whether the school has responsibility for the actions of the third party. The invitation to the disco was sent to the public. Eden farm is co-owned by the school. Hence this furthers the school’s duty under the Occupier’s Liability Act 1957. Section 2(3) requires a higher standard of care towards children; occupiers should reasonably expect that child visitors may act less carefully than adults and take reasonable steps against this. Referring back to the point made above – did the school (teachers) take any reasonable steps by getting drunk? It seems not. On the face of it there is a likely breach of duty of care owed towards the children of the school but not to their parents. The claim would be made against the school as a whole because it’s the employer of the teachers. Therefore, it is up to the school to take the necessary disciplinary measures against the teachers but the children can not make a claim of tort against the teacher because the duty of care to the children derives from the school. Brenda has registered ‘The Grange’ at the Land Registry in her name only. What is the legal effect of this and, taking into account their relationship, what other rights and claims might Frank have to the property?Brenda and Frank Calderwood have been married for fifteen years but are going to separate. The wedding present was a deposit and mortgage payment from Brenda’s parents. Brenda registered the house in her name but it says that she presumed that, Frank and she would share everything. English law makes a clear distinction between property rights enforceable at common law and property rights enforceable in equity. Rights of property that are recognized at law are said to be legal interests whilst rights of property recognized and enforced in equity are equitable interests. ‘Equity follows the law’, equity developed to provide a remedy where common law lacked the appropriate remedies. The main remedy at common law is monetary damages. This is suitable for civil wrongs .e.g. breach of contract where the claimant is entitled to compensation. However, this may not be a suitable remedy for interference in proprietary rights e.g. a persistent trespasser in this case the appropriate remedy would be an order restraining the commission of tort. The underlying principle in common law is formalities, hence where they are not present, common law will generally not recognize what the conduct or intentions of the parties were.  The complexity with property law is that ‘similar rights may exist in the same thing, and at the same time, but in two different systems of law’, namely common law and equity. The advantage of this is that it makes property law flexible. Equity looks to substance; it is the court of conscience. However, equity’s remedies are discretionary – it is entirely up to the court to award an equitable remedy. The three fundamental concepts of property law are ownership; possession and title. The concept which is most relevant to the scenario at hand is ownership. Ownership is a question of law. Whether someone is the owner of a piece of land is dependent on whether necessary evidence can be established of ownership therein. In this case with question of land involved, evidence of title deeds or as registered proprietor of the legal title of land would prove ownership. Subsequently, ownership is not absolute; rather it can be fragmented between a number of persons. Fragmentation ownership (entails the splitting up of the incidents of ownership and vesting them in more than one person) has been allowed due to the concept of the trust. There are two kinds of ownership – equitable ownership and legal ownership. A case of trust arises where there is dual ownership. It can be established by the facts given that there is a dual ownership of some kind between Brenda and Frank. Brenda would be considered the trustee – the legal owner of the house, she holds the house for the benefit of herself and Frank – the beneficiary. Thus the equitable ownership is vested in Frank.  The scenario at hand states that Brenda ‘registered the house only in her name’ even though she presumed that she would share everything with Frank, under S. 2 Law of Property (Miscellaneous Provisions) Act 1989  contracts relating to land must be in writing or will be void. Under common law Frank has no legal right to the property whatsoever. Therefore he would turn to equity for a possible remedy. As stated above equitable ownership can be acquired where there is a declaration of trust. This gives the beneficiary – Frank an equitable interest and title in the subject matter of trust. In order for this equitable remedy to be possible we first have to satisfy the requirements of a trust or establish that there was dealings between Brenda and Frank of some kind. ‘Resulting trusts reflect the presumed intentions of parties who join together in a co-operative purchase of property.’ Lord Diplock said in Pettitt v Pettitt  that : ‘ [the presumption of resulting trust is] no more than a consensus of judicial opinion disclosed by reported cases as to the most likely inference of fact to be drawn in the absence of any evidence to the contrary’. Brenda presumed that Frank intended on everything being shared at the time of purchase of the house. It is now established that there has been some express agreement between Brenda and Frank even if it was fifteen years ago. It is then necessary to ask whether there has been reliance on this express agreement by the claimant – Frank. This is illustrated by the case of Midland Bank plc v Cooke below.  In Midland Bank plc v Cooke the Court of Appeal advocated a resort to ‘general equitable principles’ in formulating a ‘fair presumed basis for the sharing of beneficial title between spouses. Although W had contributed less than seven per cent of the money ploughed into the matrimonial home, Waite LJ led the Court in attributing to the parties an intention to share  ...beneficial ownership equally, explicitly because such a conclusion was mirrored in the past pattern of their shared endeavour, their family life and their mutual commitment.  Applying the above case to the scenario at hand it would seem that Frank has the same rights as Brenda under equity. Equity would consider it unconscionable and inequitable that Brenda receives all the benefit from the Grange House. Hence Frank would rely on equity to protect his interests. Why might reference and use of a contract of employment be important to James Smith, union representative, in respect to Calderwood’s proposals for staffing arrangement at Marsh Down and Eden Farm?Frank is the headmaster of the school, the school is transforming into an academy. However, with the information at hand it does not seem like the teachers are aware of what the transformation will involve – i.e. the new workload or redirecting of work description. Frank is concerned that James Smith, union representative will ensure that this is brought to the teacher’s attention and possibly teachers who do not like the new staffing arrangement may decide to not accept. The main principles in the question are concerned with contract of employment, possible business re-structuring, new terms and conditions without any new consideration and collective bargaining with trade unions.  Firstly, we need to identify what constitutes an employee (under section 230 (1) Employment Rights Act 1996 (hereafter ERA ’96):” an individual who has entered into or works under a contract of employment) and employer (Section 295 (1) Trade Union and Labor Relations (Consolidation) Act 1992 (hereafter TULRCA ’92) defines employer in relation to an employee, as “the person by whom the employee is employed”. The employees of the school are the teachers whilst the employer would be the headmaster, Frank. Employment law is governed by common law principles and statutory elements. The common law principles are concerned with the rules of contract before the statutory elements can be utilized. It also encompasses formation of contract that one must abide by. Statutory elements work by incorporating terms into the contract of employment. Contract of employment is a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing. An EEC Directive requires that all employees receive information ‘of the essential aspects of the contract of employment relationship’.  Section 1 of the Employment Rights Act 1996 (hereafter ERA ’96) states that employees should receive a written statement of the particular terms of an employment no later than two months after the beginning of employment. The ERA provides a minimum list contents for the statement of terms and conditions. Among other things it contains: entitlement to holiday and holiday pay; title of job/ job description; collective agreements; remuneration; place of work etc. Any collective agreements which directly affect the terms and conditions of employment should be included in the statement. The position of James – union representative, is important because he represents a trade union for teacher moreover this could be of use when a business is re-structuring. Most terms in an employee’s contract derive from a collective agreement entered into by a union organization for this purpose of work. The contract of employment consists of an offer and acceptance supported by consideration. Any variation to the terms of a contract of employment requires the assent of both parties and should be supported by consideration. It is somewhat difficult to deduce whether there is a business re-structuring or whether there is mere variation on the job description. The question to be asked is whether there has been a change in the legal or natural person responsible for carrying on the business and whether there is an economic entity which has retained it identity and is transferred from one to another. If the courts are satisfied that the transformation into academy is a transfer, then it is a requirement for consultation (before an undertaking / business restructuring) to take place were trade unions have been recognized for this purpose. Hence the union representative in Marsh Down would have to be consulted before any transfer takes place. If Frank decides that he is unilaterally going to enforce a variation without any consent, he repudiates the contract of employment. Therefore, he sees James as a threat in this instance because he is aware of the fact James knows about these conditions. This is because the other employees of Marsh Down might not know that they belong to a union. However, their rights have been incorporated into the contract of employment by observance of a collective bargain. Moreover if Frank goes ahead with plans to transform the academy unilaterally, the teachers can either decide to accept the fundamental breach, resign, or to carry out working and seek damages (Burdett – Coutts v Hertfordshire CC [1984] IRLR 91). Case law suggests that an employer must make it clear that he is terminating one contract and offering another or else there is a risk that the employee can claim tribunal rights forgone under the old contract. Accordingly, if Frank decides to transform the school into an academy without making this explicitly clear to the teachers they could take him before a court and claim rights forgone under the old arrangements. Judging by Frank’s concern of James being a union representative it seems to illustrate that there is no existence of a wide flexibility clause. Many contracts have flexibility clauses – hence with these, change of actual duties performed may lie within corners of the contractual job description. Thus since the flexibility clause does not seem to exist Frank must along with James go through the right procedures – i.e. evaluating the new terms of the new contract, new consideration for the contract and receive assent from all the teachers in order for the contract of employment to be valid and also consultation prior to a probable transfer of business. James Smith’s reference to contract of employment is important because he is a representative for the teachers at the school for a trade union. Even if the teachers are not aware of their rights when there going to be a variation of their contract James is aware of what their rights are. Also he is present and serves a representative in order to make sure that the right steps are taken when the variations are to be made. BIBLIOGRAPHY John Bowers, A Practical Approach to Employment Law, 7th Ed 2005, Oxford University PressNigel P. Gravells, Land Law, 3rd Ed 2004, Sweet and MaxwellKevin Gray & Susan Francis Gray, Land Law, 3rd Ed 2003, Lexis Nexis ButterworthsKevin Gray & Susan Francis Gray, Elements of Land Law, 4th Ed 2005, Oxford University PressPeter Kaye, An guide to the English Law of Torts, Barry Rose Law PublishersSukhninder Panesar, General Principles of Property Law, First Ed 2001, Pearson Education LimitedWVH Rogers, Winfield & Jolowicz Tort, 17th Ed 2006, Sweet and MaxwellMalcolm Sargeant, Employment Law, First Ed 2001, Pearson Education Limited Glanville Williams, Foundations of the Law of Tort, 2nd Ed 1984, London Butterworths Tortious liability arises from the breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is redressible by an action for unliquidated damages.” Martin and Law, Oxford Dictionary of Law, 6th Ed. 2006, Oxford University Press, p.353 Caparo Industries plc v Dickman [1990] 2 AC 605 Lord Bridge in Caparo at [1990] 2 A.C. 617 Bradford-Smart v West Sussex CC [2002] EWCA Civ 7 Pettit v Pettit [1970] AC 777 HL Midland Bank plc v Cooke [1995] 4 All ER 562, AC The relationship between the user of labour and the supplier of labour. Section 230 (2) ERA 1996 European Economic Community Directive EEC Council Directive 91/533 – on an employer’s obligation to inform employees of the conditions applicable to the contract/ employment relationship John Bowers, Employment Law, 7th Ed, 2005, Oxford University Press, p. 35 Commission v United Kingdom [1994] IRLR 392 ECJ A collective agreement is a treaty between social powers. It is … a peace treaty and at the same time a normative treaty ( O. Kahn-Freud, Labour and the law, 3rd Ed., Sweet and Maxwell, 1983, p 123)