4. Occupational Specialist content – Legal Services Assistant

What skills do students need to demonstrate? The ability to:

• identify and explain the law that is relevant to a given scenario (E2, E4)
• apply the law to the facts of the scenario in order to consider possible liability (E2, E4)
• write a report which offers reasoned conclusions, using audience appropriate language (E1, E3)
• use appropriate software and digital tools to produce well drafted reports (D1, D3, D5)

S1.1 Describe legal principles based on the law of tort

S1.2 Evaluate a client’s legal problem in relation to the law of tort

What underpinning knowledge do the students need?

English, maths and digital skills

K1: Aspects of tort law in a business context

1.1

Understand selected areas of tort law in a business context and how these are applied

• 1.1.1 Negligent misstatement:
  • circumstances where economic loss is recoverable
  • Hedley Byrne principles; special relationship, special skill and voluntary assumption of risk
  • remedies – damages in respect of losses that were reasonably foreseeable.
• 1.1.2 Vicarious liability:
  • where one person (usually an employer) is made liable for the torts of another (usually an employee)
  • first, there must be a relationship between the parties which makes it proper for the law to make one pay for the fault of the other
  • second, there must be a connection between that relationship and the tortfeasor’s wrongdoing.
• 1.1.3 Occupier’s liability:
• liability of occupiers in relation to lawful visitors who suffer harm on their premises – Occupiers’ Liability Act 1957 (OLA 57)
• liability of occupiers in relation to non-visitors who suffer harm on their premises – Occupiers’ Liability Act 1984 (OLA 84).
• 1.1.4 Product liability:
• at common law – negligence (duty, breach, damage)
• Consumer Protection Act 1987 – imposes strict liability on manufacturers of defective products in respect of damage, death or personal injury
• remedies including damages, rejection, repair, replacement, refund.

E1, E2, E3, E4

D1, D3, D5

What skills do students need to demonstrate? The ability to:

• identify and explain the law and processes which constitute the civil justice system (E2, E4)
• convey relevant information about the whole or part of a process in relation to the parties, courts and track system, pre-trial matters, trial process and civil remedies, costs and appeals (E2, E4)
• draft a written report using audience appropriate language (E1, E3)
• use appropriate software and digital tools to produce well drafted reports (D1, D3, D5)

What underpinning knowledge do the students need?

English, maths and digital skills

K2: The Civil Justice System

2.1

Understand the civil justice system

• 2.1.1 Parties to the claim:
  • claimant
  • defendant/respondent
  • standard of proof – allegations must be established on the balance of probabilities.
• 2.1.2 Courts of first instance and appeal courts:
  • Courts of first instance
    –    County Court
    –    High Court Divisions (Queen’s Bench Division, Chancery Division, Family Division).
  • Appellate courts:
    –    Court of Appeal (Civil Division)
    –    UK Supreme Court (UKSC).

• 2.1.3 The Track System:
  • For each of the three tracks describe the financial limits, the key features of both the pre-trial and trial processes, the likely court and seniority of the judge:
    –    Small Claims-track
    –    Fast-track
    –    Multi-track.

• 2.1.4 Taking a claim to court. Understanding of the relevance of:
• guidance in the Civil Procedure Rules (CPR) where relevant
• overriding objectives
• procedures, formalities and timetables
• pre-action protocols
• how to start a claim
• case management software which manages legal cases and clients
• using the appropriate portal for electronic claims
• instructing experts
• witness summons
• liability and calculating quantum
• utilising Money Claim Online
• online court services
• obligation to encourage the use of alternative dispute resolution (ADR) including a stay of proceedings
• professional duty to clients
• Statute of Limitations – Limitation Act 1980.

E1, E2, E4, E4

D1, D3, D5

2.2

Understanding of the timeline of a civil case from start to finish including:

• 2.2.1 Pre-trial matters:
  • starting the claim – online service for claims under £10,000, N1 and N9 forms
  • directions questionnaire including N181 form#
  • pre-trial hearing including case management conferences
  • disclosure
  • pre-trial matters – depends on track but can include case management conferences, discovery, encouraging settlement or ADR, listing and timetables (note active case management)
  • directions on witnesses/expert witnesses and evidence
  • completion of Form N170
  • listing questionnaire (Pre-Trial Checklist)
  • pre-trial reviews if necessary
  • preparation of bundles for trial.

• 2.2.2 Trial process:
• claimant’s opening speech
• claimant’s evidence
• defendant’s cross-examination
• claimant’s re-examination
• defendant’s opening speech
• Defendant’s evidence, claimant’s cross-examination
• defendant’s closing speech o claimant’s closing speech  o judgment
• role of witnesses including expert and vulnerable witnesses.

• 2.2.3 Trial outcomes including:

• Liability
• Remedies:
  –    Damages:
• general and special damages
• pecuniary and non-pecuniary losses
• § mitigation and contributory negligence
  –    Injunctions
  –    Equitable remedies.

• 2.2.4 Costs:

• • General principle that the loser pays the costs of the winning party
  • Calculation of costs including: negotiated as part of settlement/ fixed costs/ detailed assessment of costs.

• 2.2.5 Enforcement:
  • court collections
  • bailiffs – warrant of control
  • using Money Claim Online
  • attachment of earnings – wage deductions
  • freezing assets
  • charging a debtor’s land or property.

E1, E2, E4, E4

D1, D3, D5

2.3

Civil appeals

• 2.3.1 Routes of appeal and related matters:
  • appeals in small claims and fast track cases dependent on the seniority of the first instance judge. Possibility of further appeal to the Court of Appeal (Civil Division)
  • appeals in most multi-track cases, regardless of court of first instance, to the Court of Appeal (Civil Division).
  • Possibility of further appeal to the UK Supreme Court
  • possibility of a leapfrog appeal – cases or appeals heard in the High Court appealing directly to the UK Supreme Court
  • grounds to appeal
  • obtaining leave to appeal
  • UK Supreme Court requirement – points of law of general public importance
  • powers to uphold or reverse decisions of lower courts and to vary awards and award costs.

E1, E2, E4, E4

D1, D3, D5

What skills do students need to demonstrate? The ability to:

• identify and explain the law and processes relevant to selected areas of employment law (E2, E4)
• convey relevant information about the whole or part of a process in relation to selected areas of employment law (E2, E4)
• apply the law regarding selected areas of employment law to a client scenario to determine the most appropriate course of action, available options or likely advice (E2, E4)
• draft a written report using audience appropriate language (E1, E3)
• use appropriate software and digital tools to produce well drafted reports (D1, D3, D5)

S1.4 Describe legal processes in relation to employment law

S1.5 Evaluate a client’s legal problem in relation to employment law

What underpinning knowledge do the students need?

English, maths and digital skills

K3: Employment Law

3.1

Understand the basic principles of Employment Law and be able to provide advice in respect of any of the following:

• 3.1.1 The purpose and functions of employment law:
  • how employment law regulates the relationship between employers and employees and the establishment of employee rights within this relationship
  • the areas covered by employment law including discrimination on the grounds of race, gender, sexual orientation and disability; working conditions including health and safety at work; parental leave; redundancy and dismissal, bullying in the workplace; working hours; pay arrangements
  • awareness of current employment laws including:
    • the Employment Rights Act 1996 (ERA)
    • the Equality Act 2010 (EA)
    • Health and Safety at Work Act 1974 (HASAWA).

• 3.1.2 Employees, workers and the self-employed:

• • employees – s.230(1) ERA 1996
  • workers (narrower) – s.230(3) ERA 1996
  • self-employed:
    • independent contractors
    • sole traders etc.

• 3.1.3 The difference between a contract of service and a contract for service and the implications:

• • tests of employment, control, integration/organisation, multiple factors and economic reality, mutuality of obligations, personal service
  • implications of the distinction between being an employee and being self-employed: pay, tax, National Insurance, redundancy, dismissal rights, health and safety protection, liability of ‘employer’ etc.

• 3.1.4 Workers:
  • types of worker – casual, agency, freelancer, zero- hours, seasonal, apprentices, (religious) ministers, the gig economy cases and determining factors (contracts, casual nature, work is less structured, irregular, provide service personally, no guaranteed work/hours, low obligation of availability)
  • implications of worker status – minimum wage, holiday pay, protection from discrimination, unfair treatment if part-time, breaks and working time limits, unlawful deductions, possible statutory sick pay and maternity pay (but not leave).

• 3.1.5 Contracts of employment:
  • types of contracts (indefinite and fixed term, full-time and part-time, non-standard (e.g. zero hours), oral and written), commencement, express and implied terms.

• 3.1.6 Contractual terms:
  • express terms include things like dates, duration, parties, pay, hours, terms and conditions, rights, notice period, duties, legal responsibilities of the employer and the employee, holiday and sick pay, training, grievance and discipline procedures etc
  • Importance of minimum terms – a written statement confirming key terms – s.1 ERA 1996 (as amended by the Employment Act 2002)
  • terms implied by statute – working time – Working Time Regulations 1998; minimum wage – National Minimum Wage Act 1998; notice periods – s.86 ERA 1996; equality
  • types of discrimination – direct and indirect
  • harassment
  • victimization
  • burden of proof
  • positive actions
  • employer responsibilities and solutions/remedies.

• 3.1.7 Knowledge of discrimination in employment:
  • protected characteristics – s.4 EA 2010:
    – age (s.5 EA 2010)
    – disability (s.6 EA 2010)
    – gender reassignment (s.7 EA 2010)
    – marriage and civil partnership (s.8 EA 2010)
    – religion and beliefs (s.10 EA 2010)
    – sex (s.11 EA 2010)
    – race (s.9 EA 2010)
    – pregnancy and maternity (s.18 EA 2010)
    – sexual orientation (s.12 EA 2010)

• 3.1.8 Termination and dismissal:
  • the ways in which a contract of employment can be terminated:
    - mutual agreement
    - by notice or expiry of fixed term
    - constructive dismissal
    - summary dismissal
    - how to make a complaint against dismissal.

• • unfair dismissal including:
    - eligibility for claim (service and timings)
    - fair reasons – capability, conduct, redundancy, legal/illegal dismissal
    - automatically unfair and fair reasons
    - employer responsibility – procedural fairness and act reasonably
    - how to make a claim
    - potential awards/remedies.

  • wrongful dismissal including:
    - dismissal without notice (s.86 ERA 1996)
    - no grounds for repudiation
    - remedies
    - courts with jurisdiction and how to make a claim
    - employer responsibilities and solutions.

• 3.1.9 Fair procedures including role of Advisory, Conciliation and Arbitration Service (ACAS):
  • difference between advice, conciliation and arbitration
  • services provided by ACAS to both employers and employees
  • preliminary hearing and final hearing.

• 3.1.10 Employment Tribunals:
  • the process of taking a case to an employment tribunal
  • preliminary hearing and final hearing
  • Tribunal remedies depend on the action but can include:
    – damages in tort and breach of contract actions as well as possible injunctions and equitable remedies where appropriate
    – tribunals award compensation, make recommendations or make declarations as to the rights of the parties
  • tribunal compensation can cover obvious losses such as loss of earnings as well as compensate for things like personal injury and injury to feelings
  • some tribunal outcomes can lead to a redundancy payment, reinstatement, payment of holiday pay or an obligation on the employer to introduce training policies or new procedures
  • exemplary damages can be awarded in some discrimination cases and tribunals can order employers to pay financial penalties where they fail to comply with an award ordered by the tribunal
  • tribunal awards and limitations on other civil actions, such as, negligence and personal injury claims.

• 3.1.11 Potential criminal liability:
  • in some situations, employers can face criminal prosecutions and penalties. Such as, serious health and safety breaches and in extreme cases, corporate manslaughter.

E1, E2, E4, E4

D1, D3, D5

What skills do students need to demonstrate? The ability to:

• identify and explain the relevant business law, principles and processes which focus on the whole or part of a process and provide accurate information on which to base client advice (E2, E4)
• draft a written report using audience appropriate language (E1, E3)
• use appropriate software and digital tools to produce well drafted reports (D1, D3, D5)

S1.6 Describe legal processes in relation to business formation and operation

S1.7 Evaluate a legal problem in relation to business formation and operation

What underpinning knowledge do students need?

English, maths and digital skills

K4: Business

4.1

How businesses are formed including sole trader, partnership and other corporate entities

• 4.1.1 Types of business:
  • sole traders:
    –    unlimited liability
    –    legal implications for a sole trader in relation to their customers/suppliers
    –    financial reporting arrangements.

• • partnerships:
    –    the Partnership Act 1890
    –    definition of partnership and implications for partners
    –    registration with HMRC
    –    legal implications of limited partnerships, limited liability partnerships (LLPs) including choosing a name
    –    limited liability and the legal implications for an LLP and its customers/suppliers
    –    documents required to register with Companies House
    –    business address
    –    role and duties of general and limited partners
    –    advantages and disadvantages of an LLP over a sole trader and a traditional partnership
    –    financial responsibilities and reporting arrangements to HMRC for a partnership and its partners.
  • Corporate entities:
    –    the Companies Act 2006
    –    legal entities in their own right (can sue and be sued)
    –    features of companies limited by shares and companies limited by guarantee (not for profit)
    –    differences between a private and public limited companies and the legal implications
    –    the process of formation of a limited company including registration process, electronic and paper registration, documentation required, the purpose and content of articles of association and memorandum of association, statement of capital
    –    legal implications for shareholders in a limited company in relation to limited liability and the separation of ownership and control.

E1, E2, E4, E4

D1, D3, D5

4.2

General appreciation or understanding of the roles and responsibilities of the owners, company officers and their duties in the context of:

• 4.2.1 The day-to-day work of a director:
  • distinguish between roles of an executive director and a non-executive director
    –    Executive Director: provide leadership at a functional area level to implement the strategies agreed by the Board of Directors; set and monitor targets for functional areas and uphold company policies; establish operational tasks; policies and procedures: review existing practices to identify areas of strengths, weaknesses and development; evaluate staff; implement HR procedures including competency and disciplinary procedures; hire managers; identify opportunities for staff training and development.
    –    Non-Executive Director: not an employee of the company; acts as an independent adviser; does not engage in the day-to-day running of the business; acts in the interests of the shareholders by ensuring the executive directors are held to account; involved in strategic planning and setting objectives at Board level.

• • keep key company documents and returns and ensure their filing requirements
  • company meetings and shareholder protection.

E1, E2, E3, E4

D1, D3, D5

4.3

Understand basic principles of Partnership and Agency Law

• 4.3.1 Relevant legislation:
  • Companies Act 2006
  • Partnership Act 1890.
• 4.3.2 Creation of partnership:
• Statute and Common Law relating to partnership (Partnership Act 1890)
• definition of a partnership
• rules determining the existence of a partnership
• liability of partners
• relations of partners to one another including variation of consent of terms of the partnership; expulsion of a partner; retirement of a partner; duty of a partner not to compete with the firm; rights of assignee of share of partnership
• purpose and functions of a partnership agreement
• the elements covered within a partnership agreement:
  –    responsibilities and accountability within a partnership
  –    number of partners
  –    profit distribution
  –    capital account
  –    interest on capital
  –    division of profit
  –    withdrawals
  –    distribution
  –    dissolution.

• 4.3.3 Partners, Agents, Principals and third parties – rights and duties:
  • the implications of the Law of Agency in respect of partnerships
  • the authority of individual partners to represent the partnership in contract formation
  • distinguish between an agent and a principal in a partnership and the implications of acting as an agent in respect of arrangements with third parties
  • apply the Law of Agency in respect of business relationships, including business contracts, as it relates to partnerships
  • the rights and duties of individual partners when representing the partnership in contractual or other legal arrangements with third parties
  • evaluate the business risks to a partnership and to individuals within the partnership in terms of the Law of Agency.

• 4.3.4 Termination and dissolution of a partnership including:
  • dissolution by expiration or notice
  • bankruptcy
  • death or charge
  • illegality
  • court action
  • implications for individual partners of the dissolution of the partnership including rights of partners as to the application of partnership property; rights where partnership is dissolved for fraud or misrepresentation; rule for distribution of assets on final settlement of accounts.

E1, E2, E3, E4

D1, D3, D5