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Published: Fri, 02 Feb 2018
Two legal views consideration and agency
This case can be interpreted in two legal views; Consideration and Agency. Before investigating this conflict, it needs to be pointed out several significant facts to be considered; the facts that Mr. Copperfield, the claimant, and Ms. Trotwood are independent contractors and work for the 25 mile area to take care of the elderly people of care homes.
He would not get paid under promised performance of existing duty,
He would not get paid under past consideration, which does not accept that there is consideration ‘because to promise to do something which has already been done is to promise nothing at all’ since the promise between the area manager and Mr. Copperfield was made by the time he nearly finished his 2-week work. However, there are more debates about some cases in where a person does more than he is bound to do such as under promised performance of existing duty. According to a case, Stilk v Myrick (1809) 2 Camp 317, ‘a promise by a person to do something which the general law of the land already obliges him to do will not amount to good consideration’.
There are legal debates about promised performance of existing duty; whether the consideration under principle of promised performance of existing duty is sufficient or not. According to a case, Stilk v Myrick (1809) 2 Camp 317, the crew was not entitled to the extra money because it was held that Myrick’s fresh promise was not enforceable as the consideration he had provided for it, the performance of a duty he already owed to Myrick under contract, was not good consideration for Myrick’s promise to increase his wages. If Mr. Coopperfield’s case applies to the general rule, he may not get paid, on the other hand, it has been considerably reconsidered by a case (Hartley v Ponsonby (1857) 7 E & B872); even though Stilk v Myrick(1809) 2 Camp 317said that sailors were not entitled to additional pay for fulfilling a duty already required by an existing contract, they were in this case. The desertion of so many crewmen (compared to the desertion of two crewmen in Stilk v Myrick) changed the nature of the remaining sailors duties to the point where the contract could be considered discharged. As such the offer by Ponsonby to pay the crew to sail back and the acceptance by the crew could be considered an entirely new contract, providing valid consideration. At last, the absence of Ms. Trotwood for a 2-week period and a number of patients could be bases to pay the extra.
The other debate which should be considered is that who pays him. It is the area manager that promised to pay it, not the care homes director. The relationship between the manager and the director needs to be studied.
There seems one more legal dispute about the position of the area manager; whether he has actual authority or apparent authority and he disclosed that he was acting for the director or not. One possibility of this case is that the area manager acted with actual authority and disclosed that he was on behalf of the director. Then, the director is liable on the contract, he should pay the extra because, an agent has the power to make contract on the principal’s behalf. Although he did not real the fact as long as he has actual authority, the director and area manager are liable to Mr. Copperfiled  . On the other hand, if the area manager who does not have actual authority to make the contract did not disclose the fact, the director is not bound by the contract, the area manager will incure liability on the contract. Moreover,
A case, Glasbrook Bros V Glamorgan County Council (1925) AV 270 (House of Lords), clearly shows that
This case has the room that would bring about discrimination and equal pay disputes, which are his stereotyped view that a manual job is not suitable for a woman, dress code problem, privacy and decency, pay problem.
It would be direct discrimination against Ms. Wilfa if the area manager hired the couple based on his biases that the manual work is not suitable for her even though she is well-qualified with qualifications needed in the work field. It is now well recognized that employment decisions cannot be predicated on mere “stereotyped” impressions about the characteristics of males or females. Myths and purely habitual assumptions about a woman’s inability to perform certain kinds of work are no longer acceptable reasons for refusing to employ qualified individuals, or for paying them less.() There is a good example case of direct sex discrimination, Batisha v Say (1977) IRLIB. Miss Batisha failed to be hired as a guide of a cave because of her sex. She had been treated less favourably than a man(). On the other hand, hiring a couple is not discrimination against a person who is not married. As regards marital status, it may be reasonable to discriminate in favour of a man or a woman where the job is one of two held by a married couple (). Moreover, dress code debate could be excluded discrimination since these rules are related more closely to the employer’s choice of how to run his business than to equality of employment opportunity and challenges to dress code appear to be a threat to socially accepted sex roles, not merely in the workplace but throughout our society.
Employers are allowed to discriminate under the Act when a person’s sex is a genuine occupational qualification (GOQ) for the job. For reasons of decency or privacy, either a man or a woman may be needed if the job involves physical contact or people may be undressing such as a changing room. This exception may be applied to the accommodation unit, where there are 30% male residents and 70 % female residents. However, the GOQ exception will not apply if an employer already has enough staff of the other sex who could take on the duties of the job without too much nconvenience. Hence, if this accommodation has enough male staff as much as to be able to cover the accommodation unit, the exception will not be applied. For example, in a case, Etam plc V Rowan (1989), the Employment Appeal Tribunal(EAT) said that Steven Rowan had been discriminated since other female staff could have measured and assisted women customers without any difficulty.
When it comes to payment. The current husband employee is paid 20 % more than his wife.
The right to equal pay between men and women for work of equal value is set out in Article 141 of the EU Treaty. In the UK, it is found in the Equal Pay Act 1970.The Equal Pay Act provides three ways for a claimant to show that their work is equal to that of their comparator – if they are engaged on ‘like work’, ‘work rated as equivalent’ under a job evaluation scheme or ‘work of equal value’. As far as I am concerned, it would be fair to pay him 20 % more because skills needed for general maintenance and domestic duties are fairly different. I do not agree that cleaning work does not require less physical labour and effort, however, work such as unblocking drains, installing domestic appliances may need more experience, training, education, and overall ability required. In conclusion, it would be fair for he to pay more, on the other hand, a case of Miss Wilfa employed would bring about equal pay debate if she was paid less than he is. When it comes to selecting a comparator, claimants must identify an actual comparator who has been employed at the same time as them, whereas claimants can still compare themselves with members of the opposite sex even if that comparator no longer works for the employer at the point of comparison – this principle was upheld by the ECJ in Macarthys Limited v Smith 1980 IRLR 209 and which is still law. () Therefore, if Miss Wilfa was paid unequally with him, she could bring a claim.
What duties the director may have breached?
All directors must act in good faith in the interests of the company as a whole. The first possible breach is Section 175 which is to avoid conflicts of interest. They may claim that the directors did not avoid a transaction in which ‘he has, or can have, a direct or indirect interest conflicts, or possibly may conflict, with the interests of the company’. This applies in particular to the exploitation of property, information or opportunities whether or not the company would be able to take advantage of themselves. Moreover, the unconflicted directors of the company may not have authorised such conflicts
Furthermore, the duty that they might have not performed was that they did not disclose the interest of the shares before entering into the transaction. They are required to declare the nature and the extent of the interest to the other directors under Section 177. However, they did not give any notice to the other directors.
What could be required of them?
The director has the right to make representations to the shareholders, saying why he or she should not be removed, both before and at the shareholders’ meeting. The director must be given time to prepare these representations, which means that there are special notice requirements. The directors who are subject to the resolution have the right to attend and speak at AGM protesting the resolution. (s.169 (2)) Alternatively, or in addition, the directors may make written representations of a reasonable length copies of which could be sent to all members of the company prior to the date of the meeting. (s.169 (3))
what they could do to protect themselves from liability
Section 232 states that a company cannot exempt a director from liability for breach of one or more of his duties to the company or limit his liability for such a breach. This prohibition is subject to a relaxation which allows companies provide a qualifying third party indemnity provision. That is the company may indemnify its directors in respect of proceedings brought by third parties ( covering both legal costs and the amount of any adverse judgment) except for the legal costs of unsuccessful defence of criminal proceedings fines imposed in criminal proceedings and penalties imposed by regulatory bodies( s 234). Companies may therefore indemnify directors against such third party actions as class actions or actions following mergers and acquisitions or share issues.
Companies are allowed to pay directors defence costs as they are incurred in respect of civil proceedings brought by the company itself or an associated company or costs incurred in an application for relief under s 1157, provided that the directors repay the costs if they are unsuccessful.
They can ask the court to grant relief to the directors concerned under s. 1157 based on the fact that the directors ‘acted honestly and reasonably and ought fairly to be excused.’ They may claim that ….
what procedure needs to be followed to remove these directors at the AGm??? And the likelihood of success
Any member notifies the company in writing, at the company’s registered office, that he or she intends to propose a resolution to remove the directors at a shareholders meeting and a member holding 10% (5%) of the paid up, voting share capital may also serve a written notice on the company by depositing it at the office. The board immediately sends a copy of the notice to the directors concerned. The directors may write to the company in regard to the matter and ask that copies of his representations be sent to all shareholders. The board must call a meeting of shareholders, giving 21 clear days’ notice. The notice of the meeting must be sent to every shareholder, which contains the usual details of the meeting, the resolution, the fact about whether the directors concerned has made written representations or not-if the representations are received too late for enclosure with the notice of the meeting, they must nevertheless be sent to every shareholder if there is time and if there is not the directors may require that they must be read out at the meeting. The shareholders’ meeting must be called for a date that is at least 28 days after the original notice of intention of propose the resolution was given to the company by the members. Opportunities must be given for discussion and in particular the director must be given reasonable opportunity to speak. After discussion the chairman must put the question to the vote. A simple majority of the shareholder will suffice to pass the resolution and in the event of an equality of votes the chairman will, subject to the articles, have a casting vote whether or not he is a shareholder. The chairman will then formally announce that the resolution is carried.
The directors have the right to use weighted voting rights to prevent their removal from the board of director like Bushell v Faith (1970, HL). They have total 45% of the voting power to avoid it, which is 30% of their own shareholding of the company and additional rate 15%, 50 % enhanced power of total 30%.
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