Lecturer: Miljen Matijašević Session 8

1. Revision of the last session 2. Translation practice 3. Case studies

Judicial Control of Public Authorities

1. What is delegated legislation and who issues it? 2. What does ultra vires mean? 3. What can judicial review refer to? 4. What are the two ways to initiate judicial review? 5. What are the possible grounds for review? 6. What remedies are available?

CONTRACT LAW

A void contract lacks one of the essential requirements and, in fact, does not exist at all; it is entirely without legal effect and does not give rise to any legal rights or duties. In fact, if a contract is void, there is really no contract at all. A voidable contract is valid to start with but may be brought to an end (or avoided) at the option of one of the parties. It is affected by a flaw (e.g. fraud, misrepresentation or duress), and the presence of any of these defects enables the party adversely affected to take steps to set the contract aside. If the party exercises the option, the contract will cease to be operative from that time. An unenforceable contract is valid in all respects except for the fact that it cannot be enforced by an action in law because the party wishing to enforce it lacks some particular type of evidence (e.g. evidence in writing) which is necessary for the enforcement of this type of contract. Except for its unenforceability the contract is still a valid one, so that if the other party performs it, he will be unable to recover whatever he may have given or paid, having given or paid it in pursuance of a valid contract.

Case study CONTRACT LAW

The defendant company (Celestica) was located in Stoke-on-Trent, and engaged the claimant (Pickfords), a removals and transportation provider, to move part of its operations to a site in Shropshire. Throughout a series of correspondence three documents became of particular importance. The first was a fax sent by Pickfords to Celestica on 13 September 2001, the first offer. The document included an offer to undertake the required work at a price per unit moved, plus additional costs such as insurance. Pickfords sent Celestica a 'second offer' on 27 September 2001 providing a fixed price for the whole work, inclusive of such provisions as insurance. On 15 October 2001 Celestica sent a fax to Pickfords entitled 'confirmation', which stated that the price of the work should be capped at £10,000. Subsequently the relocation was performed.

1. First communication, 13 Sep 2001 ◦ Fax: claimant to defendant ◦ PRICE: per unit moved, plus additional costs (e.g. insurance) 2. Second communication, 27 Sep 2001 ◦ Fax: claimant to defendant ◦ PRICE: fixed price for whole work, inclusive of additional costs (insurance) 3. Third communication, 15 Oct 2001 ◦ Fax: defendant to claimant – “CONFIRMATION” ◦ PRICE: should be capped at ₤10,000

The defendant paid claimant on the basis of the first offer (per unit moved). The claimant commenced proceedings contending that the defendant accepted the second offer, and as a result were entitled to the fixed sum. FIRST INSTANCE: The recorder found that the first offer was capable of acceptance and was accepted by the defendant's fax.

APPEAL The claimant appealed against the decision.The claimant argued that the recorder was wrong in finding that the first offer provided the basis of the contract. The claimant contended that (i) even if the first offer was valid, the communication of the second offer with terms and conditions attached clearly acted to revoke the first offer, (ii) therefore the recorder should not have held the first offer to be capable of acceptance, and (iii) the recorder should have found that that the express use of the word "confirmation" confirmed the second offer, as distinct from the first offer which did not require confirmation. It fell to be determined in which document the contract was evidenced.

Case study EMPLOYMENT LAW

Direct Discrimination occurs when someone is treated less favourably than another person because of a protected characteristic they have or are thought to have (perceptive discrimination), or because they associate with someone who has a protected characteristic (associative discrimination). Indirect Discrimination can occur when you have a condition, rule, policy or even a practice in your organisation that applies to everyone but particularly disadvantages people who share a protected characteristic. Harassment is "unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual's dignity or creating intimidating, hostile, degrading, humiliating or offensive environment for that individual".

Nadia Eweida is a practising Christian. She works for British Airways (BA) as a member of check-in staff and is required to wear a uniform. From 2004 until 2007, BA's uniform policy prohibited the wearing of visible items of jewellery. Between 20 May and 20 September 2006, Eweida attended work wearing a visible silver cross on a necklace. When she refused to conceal the cross, she was sent home. She remained at home, unpaid, from 20 September until February 2007, when the uniform policy was amended allowing staff to display a faith or charity symbol. Eweida brought a number of claims against BA, including claims under the Employment Equality (Religion or Belief) Regulations 2003 of direct and indirect discrimination and harassment.

FIRST INSTANCE (Employment tribunal) The tribunal dismissed Eweida's claims. It held there was no direct discrimination. Eweida had not been treated less favourably than BA would have treated any other person with a faith, or no faith, displaying jewellery over their uniform. The tribunal also held there had been no harassment. There was no evidence that BA had engaged in unwanted conduct. It had simply sought to enforce its contractual uniform policy. Further there was no evidence that BA's treatment of Eweida was on the grounds of her religion. In relation to the claim of indirect discrimination, the tribunal found that BA had applied a provision, criterion or practice to the claimant. This was the requirement that any jewellery should be concealed by a uniform. However, the tribunal said this did not put Christians at a particular disadvantage compared with other persons, so this claim also failed.