Sam Middlemiss

Legal liability of universities for students

This article involves analysis of the nature of the legal relationship between universities and their students. The development of a general perception that students are consumers of services provided by the university or their clients responsible for paying their own fees has led to an increased likelihood of students seeking legal redress for inadequacies in their educational experience. Recognition of the contractual basis of the arrangement and the resultant legal remedy for breach of the contractual terms has provided the means by which rights can be enforced. However, there are also a number of areas of law (under statute and the common law) which can be utilised for this purpose. These areas are summarised and the difficulties associated with their utilisation identified. The need to reform the system of student complaints in universities and the legal framework for enforcing their legal rights is discussed and recommendations put forward.

The psychological contract and implied contractual terms: Synchronous or asynchronous models?

Purpose – For longer than most people would think, over 40 years, organisational psychologists have been defining and characterising the employment relationship in terms of the psychological contract. Across the same period, judges have through their decisions in legal cases been setting down implied terms that apply to all contracts of employment. Accompanying this development certain commentators, drawn from both academic and practitioner backgrounds have been analysing these terms in considerable detail. The purpose of this paper is to analyse the nature and importance of the concept of the psychological contract and consider its application in the context of the most important implied terms in the contract of employment.Design/methodology/approach – This article was written from a review of the secondary sources of the two disciplines covered. It was only possible to give an overview of the key areas and their influence and given that these two areas had not been analysed together before there was lit...

Employers' liability for occupational stress and death from overwork (karoshi) of workers in Japan

In this paper, we will undertake analysis of the legal treatment of stress related illness at work and death by overwork (known as karoshi) in Japan. We will endeavour to explain the severity of the problem of stress related illness and death by overwork (including death by suicide) in Japan and how its judiciary and government have provided protection and/or redress to its victims or their executors. How the law deals with this problem in Japan will be considered in detail and lessons taken from this to assist in dealing with the growing problem in the USA and the UK.

Equal pay legislation and its impact on the gender pay gap.

Equal pay legislation has been in existence for over 40 years in the UK and the legal rules dealing with equal pay have been consolidated and amended recently with the implementation of the Equality Act 2010. However, despite this, problems can still be identified with equal pay in the UK, most notably the continued existence of a sizeable gender pay gap. This article will outline the current legal rules on equal pay and analyse their effectiveness in addressing the issue of the gender pay gap. It is clear that a problem such as the gender pay gap is often caused in society by deeply held stereotypical, discriminatory views and in employment by employers (and some employees) with institutionalised discriminatory attitudes and behaviour. These causes of the gender pay gap militate against it being tackled solely by the law (specifically equality legislation). In this article we will undertake a comprehensive analysis of the topic and establish to what extent the current law can facilitate the necessary changes to eradicate this gap. In areas where it is not sufficiently robust to do this we will analyse what further changes are required through adjustments in the legal rules in the UK. Clearly, much is to be gained from eradicating the gender pay gap. However, there are a number of obstacles to achieving this, which are considered.

Recent changes in the evidential requirements in indirect sex and race discrimination cases

Purpose – The purpose of this paper is to critically analyse the impact of recent case law on the various evidential requirements in the area of indirect sex and indirect race discrimination in employment. It is intended to distil from the case law a comprehensive summary of the evidential requirements which an applicant in such a case must meet in order to succeed.Design/methodology/approach – The evidential issues and the requirements to be fulfilled by an applicant in such cases will be identified and analysed by means of a review of the case law in this area.Findings – Despite attempts of the courts to clarify the evidential requirements in this type of case, the law in this area remains complicated and confusing. Close analysis of the case law results in the identification and clarification of particular evidential “hurdles” which an applicant must clear in order to succeed.Originality/value – The effect of these requirements results in a burden on an applicant in a case of indirect discrimination wh...

The law dealing with sexual favouritism in the workplace

Purpose – This paper aims to cast light on the legal aspects of a problem which in the past, because of its nature, has largely gone unrecognised and become part and parcel of working life. The paper seeks to provide an overview of the current legal treatment of sexual favouritism in the UK and USA and recommends how it can be improved.Design/methodology/approach – The law in the USA is chosen for comparison because they have a system of employment law which is more longstanding and because the volume of cases dealt with there provides more examples than that in the UK. The law in this area is analysed through consideration of the relevant legal decisions and statutes and codes of practice that apply in both jurisdictions.Findings – This article highlights the key issues for victims and employees involved in sexual relationships with their supervisor at work and encourages employers to take steps to combat this practice. It will also hopefully persuade the judiciary to interpret the existing law to provid...

Legal Regulation of Harassment on the Ground of Age: Lessons from America?

While numerous articles have now been written on the age regulations1 they tend to concentrate on the broad detail of the Regulations and their likely impact in the United Kingdom, whereas this article, while also involving analysis of the legal rules, concentrates on one aspect of the Regulations namely, age harassment. It will also involve consideration of the equivalent law in the United States because they have a much more mature set of legal rules dealing with this type of activity. The difficulty of making such a comparison is that the legal rules in the two jurisdictions are very different and the UK version is much more favourable than its US counterpart. Nevertheless, it is this writer’s view that identifying the various problems that have arisen in the US with implementing their age legislation in respect of age harassment over almost forty years2 will prove instructive and valuable to those persons required to comply with the new law in the UK and offer valuable insight into the legal treatment of this issue.

Discriminating Material? Legal Liability of Employers for Job Advertisements

It is increasingly being recognised that an impressive and relevant presentation of job advertisements, combined with their strategic placing in an appropriate medium is key to a successful recruitment campaign. With increasing competition for certain jobs in this country this is vital although there are inherent dangers for an employer who, without considering the risks, simply asks for what he wants in terms of the skills attributes and characteristics of an applicant. The employer could face serious legal consequences where he wrongly discriminates against people not meeting his requirements or the content of the advert does not reflect the reality of the situation in the workplace. This could take the form of a claim under the equality legislation or a common law action under the law of contract or tort.

“Another nice mess you’ve gotten me into” employers’ liability for workplace banter

Purpose Banter has been defined in the Oxford Dictionary as “the playful and friendly exchange of playful remarks” [www.merriam-webster.com/dictionary/banter]. This suggests that it is a form of dialogue or conversation that is welcome, non-threatening and appreciated by the recipient. However, this is often not the case, and the purpose of this paper is to consider the legal rules dealing with banter where it is threatening, unwanted or oppressive to the recipient. Where there is a discriminatory aspect to the banter, the protection provided under equality law will be considered. Banter can be directed at workers with different characteristics (e.g. disability, age, religion, sex, race or sexual orientation), and this paper will consider discriminatory banter whatever the basis. The different types of dialogues falling under the term banter will be analysed and the extent to which legal protection is in place to deal with it will be considered. The statutory legal rules dealing with harassment and bullying in the UK are the most relevant to controlling workplace banter and accordingly will be given primary consideration. Finally, recommendations will be made for improving both management practice and the law in this area. Design/methodology/approach The methodology used is a thorough review of secondary sources in the UK including relevant statutes and legal cases and research undertaken in this area. Findings There is a need for legislative change to protect victims of unwanted workplace banter. Research limitations/implications Legal and managerial solutions to a complex problem. Practical implications Very few sources of primary research. Originality/value Highly original.

Whistle-blowing and the equality dimension of victimisation in the workplace

A considerable amount of attention has been given to the general law of victimisation under the Equality Act 20101 but scant consideration has been given to the equality aspect of victimisation relating to whistle-blowing in the United Kingdom, and the present article will address this. The term whistle-blowing relates to workers making certain disclosures of information relating to their employer’s activities in the public interest. Most workers in the public, private and voluntary sectors are protected from victimisation by making a protected disclosure under the Public Interest Disclosure Act 1998. However, only qualifying disclosures (defined below) are protected by the Public Interest Disclosure Act 1998. The protection against victimisation covers unfair dismissal and an action for suffering a detriment. However, this article will concentrate on the latter. In the process of considering the legal rules in the United Kingdom, the human rights dimension of cases will be considered as will comparison with the law in the United States.