Substitution Clause In Contract Law

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Nordenfelt established the general principle of ‘public interest’ that allows a person to continue their trade freely, making any restrictive covenants void. However, this rule can be upheld if two conditions are complied with: a legitimate interest, and reasonableness. Utilising the principle, the validity of the clause needs to be identified to advise both parties. In addition, if the clause is rendered void using the principle,severance could make it valid and enforceable.
A legitimate interest is ‘the nature of trade connection or in nature of trade secrets’. This was affirmed in Foster as the art of glass blowing was a trade secret yet in Morris , expertise and skills gained during employment were not trade secrets. Skilton
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A substitution clause allows an employee to delegate his work if he is unable to do it. This often removes the element of personal service, and consequently contradicts a contract of service. This will often leave workers to be self-employed and employers can mitigate legal liabilities.
The courts in Ready Mix applied a pragmatic and contractual approach, weighing up all the factors in the contract against a contract of service. MacKenna J identified three essential conditions to question if the terms were consistent to a contract of service. Addressing these conditions, substitution clauses removes the personal element and thus would be inconsistent with a contract of service. In addition, Tanton a personal service was an irreducible minimum which substitution clauses removed, taking a contractual approach. However, these decisions are criticized as it gives employers the ability in ‘avoiding legal responsibilities’ and how employers enter clauses to avoid liabilities. In addition, Pitt argues that if the question had been reversed; the courts would have found nothing inconsistent a contract of service and the right to delegate was
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Having this in mind, this essay will discuss how the Equality Act 2010 provides an effective remedy to equal pay in relation to real and contemporaneous comparators .
The general rule, allows the claimant to choose the comparator . An equal pay claim comparison has three requirements: same or equivalent establishment, same employer, and equal work.
In S79 , a real comparator is required for an equal pay claim, matching the requirement in EqPA . Carl illustrates the need for a real comparator, as he could not use a hypothetical comparator under the regulation. The new system provides an effective remedy for equal pay against the Article 157 , as the comparator must be actual and not hypothetical . In Defrenne , art 141 (now 157 ) could be effective for actual comparators, yet it is too complex for hypothetical . However, using a real comparator is problematic as if there is no real male comparator, the claim can only be brought as a sex discrimination provided it was a result of direct discrimination . Segregated occupation highlights the problem as a sweatshop worker with no male comparator cannot claim for equal pay and thus remains on low wages. Moreover, outsourcing creates a second employer, making female part-time teachers unable to claim for equal pay, Allonby . Furthermore, S73 provides a remedy for maternity cases as there is no real
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