Common Legal Terms and Phrases used in employment law - MILS

jueves, 16 de febrero de 2012 08:43 p.m.

Common Legal Terms and Phrases The following A-Z briefly explains the most common legal terms and phrases used in employment law.

Action - The lawful demand of ones right by use of Legal Proceedings. - Civil - brought to enforce a civil right - Penal - aimed at some penalty or punishment in the party sued - Criminal - of public nature against one or more persons accused of crime Arbitration - A voluntary but binding arbitration is available where an applicant is pursuing an unfair dismissal claim. The applicant must receive independent advice and the parties must agree in writing to be bound by the decision before proceedings. The hearing is private, there is a bar on any further tribunal hearing on the claim and the arbitrator can award reinstatement or compensation. The decision of the arbitrator is final. There is no appeal to the EAT (Employment Appeals Tribunal). Breach - An invasion of a right or violation of a duty. - Fundamental Breach - breach of a fundamental term going to the very root of the contract. Burden Of Proof - The duty of proving ones case (most often lies on the plaintiff or prosecutor) Causation - Link between the cause of action and its effect i.e. link between the accident and the injury. Cause of action - Legal principles on which a given action is grounded. Compensation - Money paid for damage caused by any wrong or breach of contract, or to persons defrauded or injured by any criminal offence. Compromise agreements - A written, binding, and private agreement covering a specific complaint. The agreement has the effect of barring further proceedings. This type of agreement is only valid if an employee has received advice from a relevant independent advisor.

Consideration - A compensation for something promised or done. Valuable consideration turns a promise into a binding agreement.
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Valuable consideration turns a promise into a binding agreement.

Constructive dismissal - Where an employers treatment of an employee left him or her with no option but to resign or where the employer threatens to dismiss and as a consequence the employee resigns. The employers threat to dismiss must be accompanied by other reasons that caused the employee to resign. The employer needs to know why the employee has resigned to make it easier to claim constructive dismissal. Contract - A legally binding agreement upon legal consideration (see above) to do or abstain from doing some act. A contract may be written or verbal. Contributory negligence - Negligence, by which a person contributes to the happening of an accident to him or herself, for which others are partially, or even mainly responsible. The injured person will not be entitled to recover full damages for the injury if it can be shown that, except for his or her negligence, the accident would not have occurred. Counterclaim -Where a defendant also has a claim against the Plaintiff. Usually the Court pronounces a final judgement in the same action on both the claim and counterclaim. Custom - An unwritten law that gained its validity through long use. General Custom (Common Law) - Unwritten law that has developed over the years based on the content of judicial decisions. This is in opposition to statute law; law enacted by Parliament. Particular CustomThe customs of a particular district that affect only members of that district. Damages - The satisfaction awarded by a Judge or jury in a civil action for the wrong suffered by the plaintiff. Normally damages are claimed for pain and suffering, inconvenience and for future financial losses. Defence - The statement of the defendant in answer to the plaintiffs claim. Defendant - A person sued in a civil action or charged with a criminal offence. Discharge - Releasing the parties of the contract from their obligations under that contract. Dismissal - A person may be dismissed if the employment contract is terminated, a fixed-term contract is not renewed, the employee leaves (claiming this is a result of the employers conduct), a redundancy takes place, a woman is not allowed to return to work after maternity leave, the employer claims there has been a "self dismissal", or there is a refusal to re-employ after a transfer. Discrimination - The law prohibits discrimination on the specific grounds of sex, race and nationality, disability, and trans-sexuality. At the European level, there are proposals for a new directive, which would establish a general framework for equal treatment in employment. It is lawful at present to discriminate on any other grounds including sexuality.
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sexuality.

Duty of care - The duty of care owed by all persons is a duty to take reasonable care not to do anything likely to injure a "neighbour" (i.e. road users have a duty of care to each other). Breach of the duty gives the right to claim damages. Equality clause - Operates in every employment contract, giving women the right to equal treatment with men. The act states that women have the right to equal treatment in pay where they are employed on "like work" with a man, on "work rated as equivalent" to a mans or on "work of equal value" compared to a mans. Express - That which is not left to implication, e.g. an express promise or covenant. Express Term - a clearly stated/written part of the contract.

Fixed term contract - A contract for a fixed duration that cannot be ended before that time other than by breach.
Frustration - The prevention of the carrying out of a contract due to the occurrence of an intervening event or change of circumstances so fundamental as to be regarded by the law as striking at the root of the agreement. The event makes the contract impossible to perform. Harassment - Sexual Harassment - (as defined by the EC) "unwanted conduct of a sexual nature, or other conduct based on sex, affecting the dignity of women and men at work, including the conduct of superiors and colleagues". - Racial Harassment - "unwanted conduct of a racial nature, or other conduct based on race affecting the dignity of women and men at work, including the conduct of superiors and colleagues".

Implied term - A term not stated but established by indirect or circumstantial evidence, by previous dealings, or presumed in certain circumstances to exist in the absence of evidence to the contrary.
Indefinite term contract - Contract of employment that keeps running until reasonable notice is given by either side. Injunction - An alternative to claiming breach of contract. An injunction may be used to stop an employer from changing the contract unilaterally. Issue - The point or matter arising out of the allegations and pleas of the plaintiff and defendant in a case. Issuing proceedings - When the action actually begins i.e. when the summon/writ is stamped and sealed by the Court. Letter before action - A letter written setting out the basis of the claim and asking for a response before issuing proceedings. Liability - Legal responsibility for the action Limitation period - Period during which the action should commence. No Court will entertain proceedings for the enforcement of certain rights if such proceedings were begun after this period.
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if such proceedings were begun after this period.

Liquidated claim - Claim for a fixed amount of compensation/damages (ie a debt) Litigant in person - Someone defending a claim themselves without the help of a Solicitor/Barrister. This occurs most often during arbitration proceedings. Minimum wage - The minimum level of pay to which almost all workers in the UK have a legal right. The minimum hourly rate was set at 3.70 an hour for those aged 22 or over from 1 October 2000 and 3.20 for 18-20 year olds from 1 June 2000. Misrepresentation - Either by words or conduct, misrepresentation, must be a false statement of fact. The statement is made by one party to the other of a contract which although not a term of the contract induces the other party to enter into the contract. Mitigation - Legal principle that the Plaintiff should take reasonable steps to limit the loss suffered as a result of the Defendants wrong doing. Mobility clause - A clause in a contract which provides that an employee should move location of employment when requested. This does not necessarily give the employer unlimited rights to transfer workers and the issue of whether the effect of the clause is discriminatory should also be considered. A relocation can amount to constructive dismissal. Negligence - When a legal duty of care has been breached by omission of a positive duty which leads to damage suffered by the Plaintiff. The question of negligence is one of fact.

Neighbour - Anybody you could reasonably foresee to be damaged or injured by your actions.
Next friend - An adult under whose protection an infant institutes an action or another legal proceeding. This adult is responsible for the conduct and the costs of the proceeding. Particulars of claim - A plaintiff or defendant is required to give a statement in summary form of all material facts on which he relies for his claim or defence. (A pleading) Plaintiff - A person bringing an action. Pleadings - A formal document in writing or print between the parties in a suit or action; in this document, each side states their allegations of relevant facts and each side states their position. Privity of contract - The relationship between parties which mutually sign the same contract. Only a person who is a party to a contract may sue on that contract. Proceedings - The formal legal process of dispute resolution in an action or other legal proceeding. Quantum - Monetary value of the action.
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Quantum - Monetary value of the action. Redundancy - When a worker is dismissed if the employer has ceased, or intends to cease carrying on the business; or the requirements for employees to carry out work of a particular kind, or to carry it out in the place in which they are employed have ceased or diminished. A worker may receive redundancy pay as compensation for loss of his or her job. Re-engagement - Where an employee is re-employed by the employer on different terms but in comparable work. Re-instatement - Where an employee is re-employed by the employer on the same terms. Remedy - The compensation given by the Court for the infringement of a right or for the recovery of a right.

Remoteness of damage - There is a lack of direct connection between a wrong complained of and the injury alleged to have been sustained by it. One may not recover from it.
Repudiatory breach - When a party bound by contract refuses to perform the contract or a significant part of it. Rescission - The cancellation of a contract putting the parties back into the position they would have been in had the contract never been made. Restrictive covenant - A term in a contract of employment which prevents an employee from doing certain things after leaving that employment. Examples include: - non solicitation - an employee is bound not to poach work from his or her ex-employer; - non competition - an employer is bound not to go into competition with his or her ex-employer; - confidentiality - where an employee is not to divulge employers confidential information. Revocation of an offer - The cancellation of an offer, by the person who had made the offer, before it is accepted. Service of process - The delivery of a writ, summons, or notice to the defendant. The service is complete only after the defendant receives the document. Special damages - Damages claimed for quantifiable losses from the accident to the trial itself (i.e. wages). Specific performance - Carrying out a contract in accordance with its terms. Statement of claim - The statement by the plaintiff to the High Court of Justice of the ground of his or her complaint and of the relief or remedy to which he or she claims to be entitled. Strict liability - Where the defendant is held liable if the plaintiff suffers damage without the plaintiff having to show the defendant was at fault/negligent. Summons - An order to appear before a Judge or magistrate and is a
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Summons - An order to appear before a Judge or magistrate and is a court document used to commence proceedings. The summons contains a brief outline of the case including the claim made and of the relief or remedy being sought. Third party - One who is a stranger to proceedings between two other persons. A third party may be drawn into an action, under order of the court or judge, by a defendant who blames the third party.

Tort - A civil wrong independent of contract that gives rise to a claim in damages.
Unfair dismissal - Where an employee is dismissed for certain statutory reasons and is inequitable and is incompatible to the merits of the situation.

Unliquidated claim - Claim for an unspecified amount of damages/compensation to be decided by the Judge i.e. damages for personal injuries, distress or inconvenience etc.
Unliquidated damages - Damages the amount of which in money is not ascertained, ie in cases of libel, slander, assault, etc. Vicarious liability - Where an employer is held liable for a tort committed by an employee in the course of their employment. Waiver - The abandonment/relinquishing of a right by one party, so that afterwards he or she is no longer allowed to reclaim it. The claim may be abandoned expressly or by actions. Writ - The High Court commands, by document, the commencement of proceedings. Wrongful dismissal - Dismissal in breach of a contract and can include dismissal without proper notice. Proper notice amounts to one week if one has worked between one month and two years, proper notice is one week for each year one has

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