Rights during OML

Rights during OML

Contract of employment continues, entitled to benefit of terms and conditions of employment which would have applied if not absent (except remuneration).  If employer denies her these benefits the he will be in breach and it will be discriminatory if based on fact of pregnancy. This was seen in the Taxi number Manchester case of 1998

Returning to work after OML

She returns to work at the beginning of the 27th week, no notice is needed.

If she wants to return before the end of the 26th week, she must give 28 days notice, if she fails her employer can postpone her return period so as to secure 28 days notice but cannot extend it beyond the 26 week period.  NB if employer not given notice of end date of OML then will not be able to prevent her returning early.

Right to return

Entitled to return to work to the job in which she was employed before her absence with her seniority, pension rights and similar rights, and terms and conditions which are no less favourable than before.her OML.  It also counts towards her period of continuous employment.

Failure to return after OML

Will not terminate contract of employment, court will look at intention of employee.  If she intended not to return then they will interpret her act as terminating the contract.  Failing any intention, employers will need to discover the reason for a late return before taking action.  Failure to treat her the same as any other late returner could lead to discrimination or UD.

Compulsory ML

Employer must not let a woman return to work within the 2 week period from childbirth, it is a criminal offence.

AML Period

If at the start of the 14th week before EWC, a woman has completed 26 weeks continuous employment, she will be entitled to AML.  It will commence on the day after the last day of OML and continue for up to 26 weeks.  She does not have to tell her employer her intention to take this when she notifies him of her OML.

Under Chapter III

To achieve its overall objective, namely the easy circulation of judgements, the recast regulation has abolished the intermediate exequatur procedure.[1] Under Chapter III, section 2 of the recast[2] it is provided that no declaration of enforceability is required for a judgement enforceable in one Member State, as it will now be automatically enforceable in all Member States. As illustrated in the case Deutsche Genossenschaftsbank v Brasserie du Pecheur,[3] the duty of the procedure fell under the appropriate enforcement authority. This, in essence, ensures that a valid judgement can now be relied upon across the Union without involving the process by which it used to go through to be enforceable. The process, as it was, involved a translation of the judgement to be delivered when applying for exequatur, which was widely criticised as it proved to be difficult, resulting in delays and increased costs for the parties involved. However, now it is provided that a translation may be requested where necessary[4] or where the enforcement authority is unable to proceed[5] without such translation.

 

The exequatur procedure proved to be a true barrier to the free movement of judgements, and now the current system functions well in practice as it has been substantially simplified and the removal of this procedure provides faster access to justice. However, it has been noted that the abolition of exequatur may not be as straight forward as it seems. The intermediate procedure provided the function of a safeguard. When a judgement is first met by an enforcement authority in a Member State, it has to be examined to ensure its authenticity, for without this procedure, the system is open to abuse of fraud and forged documents.[6] Another outstanding issue, which may raise concern following the abolition of exequatur, is the judgement import into other Member States, which is now carried out by non-judicial authorities, which may provide difficulties, as the extent of the non-judicial authority legal knowledge may prove to be lacking and therefore this may prolong the process of the movement of judgements, which undermines the purpose of the change set out in the recast regulation.

[1]Philippe Hovaguimian The enforcement of foreign judgments under Brussels I bis: false alarms and real concerns, Journal of Private International Law, (2015) 11:2, 212-251, DOI: 10.1080/17441048.2015.1068001

[2]Regulation (EU) No 1215/2012 art. 39, abogados de accidentes de trabajo

[3]Case C-148/84 Deutsche Genossenschaftsbank v Brasserie du Pecheur EU:C:1985:280; [1985]

[4]Regulation (EU) No 1215/2012 art. 37 (2)

[5]ibid. art.42 (4)

[6]Philippe Hovaguimian The enforcement of foreign judgments under Brussels I bis: false alarms and real concerns, Journal of Private International Law, (2015) 11:2, 212-251, DOI: 10.1080/17441048.2015.1068001

Tort actions pt.2 (Florida Law)

The torts to be examined in the remainder of this paper were developed with natural persons in mind, so that their ability to bind elements within a corporate group involves less stretching of concepts – although argument will be made for one exception to this proposition. Two tort doctrines will be reviewed: conspiracy and negligence. These actions accommodate three party claims involving the injured claimant, the insolvent subsidiary and another ‘element’ within the corporate group. They are capable of pleading in cases of agreement or coordination between elements of a corporate group. However, they also differ from each other in that they represent, respectively, intentional tort and negligence-based liability. The major stumbling block in proving unlawful means conspiracy, as we shall see, will be in proving that an intention to injure was present. Unlawful means conspiracy is likely to be applicable in claims involving financial losses only, while negligence can be pleaded in cases involving all major heads of loss recognisable in tort. We will focus upon use of negligence for the redress of personal injury claims.

[1] [1996] 2 All ER 433, 448. See also Ord v Belhaven Pubs Ltd [1998] 2 BCLC 447, 457 Hobhouse LJ).

[1] Pervasive enterprise liability principles have not been adopted in any common law jurisdiction: Companies and Securities Advisory Committee, Corporate Groups Final Report (2000), 157. For attempted use of enterprise liability in Australia, see, eg, Premier Building and Consulting Pty Ltd (rec apptd) v Spotless Group Ltd (2007) 64 ACSR 114. See also Notary publicBriggs v James Hardie & Co Pty Ltd (1989) 5 NSWLR 549, 576-77 (Rogers AJA).

[1] [2010] 182 FCR 526, [37] (The Court).

[1] Companies and Securities Advisory Committee, Corporate Groups Final Report (2000), chap 4.

[1] (1977) 137 CLR 567, according to the NSW Court of Appeal in Briggs v James Hardie & Co Pty Ltd (1989) 5 NSWLR 549, 576. See also Walker v Wimborne (1976) 137 CLR 1, 6-7 (Mason J).

Tort Actions

It is helpful at this point to stand back from the particular problems of veil piercing and enterprise liability to consider why such group doctrines have failed to achieve any real purchase in resolving the problems of corporate groups. The fundamental problem is that the law does not easily handle group liability which is not derived from some agreement or coordination between individuals. Company law itself is constructed upon the idea that a company is a separate legal person – separate from both its shareholders, including its controlling shareholders, and its directors. An example of this would be the law firm in the United States in Florida, Abogados de accidentes. Where directors are liable for misconduct, this is based upon their own individual failures to meet statutory requirements and standards. What applies as between the constituents of a single company applies equally to the constituents of a corporate group. They cannot be treated as monolithic.

Entity principles are fundamental to the imposition of civil liability and this means that civil liability can extend beyond the insolvent subsidiary only upon grounds which are substantially analogous to those applicable to natural persons.

Jacks v David 1998 12 CCLT 298

 Jacks v David 1998 12 CCLT 298

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Furthermore, in the case of Jacks v David 1998 12 CCLT 298, the judge held that a lawyer may represent multiple clients in the same transaction but only if he is able to adequately represent the interests of each client and to make full disclosure to all. Thus, the lawyer still must always act in good faith and to the public. The duty of care may be compromised, but the lawyer must still act in good faith.

A distinction should be drawn between a solicitor’s liability to his client in negligence and his liability as a fiduciary. They are separate and independent of each other. The reason for this distinction is because the remedy for breach of fiduciary relationship is purely equitable and does not involve the importation of delictual principles or standards.

Relating back to Clark Boyce, since there was no contractual duty on Mr Boyce to advise the respondent on the wisdom of entering into the transaction she cannot claim that he nevertheless owed her a fiduciary duty to give that advice.

Another important limitation placed by the Privy Council on the fiduciary duties of solicitors is the fact that any duty of disclosure can only extend to the solicitor’s knowledge of facts not to his lack of knowledge. Therefore Mr Boyce’s failure to disclose his lack of knowledge as to the son’s ability to service the mortgage did not amount to a breach of fiduciary duty.

 

A strong doctrine

a strong doctrine of loyalty would be difficult to operate in such a small jurisdiction. My opponent may argue that the fiduciary duty may be breached as the lawyer cannot operate their duties without disclosing facts, however, as I will demonstrate, my opponents argument is not in accordance with the law.

In Scotland, the number of significant corporate firms is relatively small and it is commonplace for corporate clients to spread their work amongst a number of firms.

The doctrine of informed consent permits a solicitor to continue to act in a potential conflict under the law of fiduciary duty. The leading case is Clark Boyce v Mouat 1994 1 AC 428, where the claimant secured a loan for her son. In this instance the solicitor acted for both the son and the mother but the solicitor advised the mother that she ought to obtain independent legal advice and further stated that she would lose her house if her son could not keep up with the mortgage payments. The mother refused and subsequently some time later, the son was declared bankrupt and the claimant lost the house. It was held in this case that the solicitor could act for both parties with potentially conflicting interests, provided he had informed consent meaning that both parties knew of the possible conflict resulting in the solicitor being disable from disclosing full knowledge or giving advice to one party that may conflict the other.