It is often argued that contract and tort law are similar in that both are part of the law of obligations; on the other hand, criminal law is part of public law and is therefore fundamentally different.
Using relevant case law throughout, discuss the validity of the above statement.
Magley Custom Kitchens (MCK) is a company designing and manufacturing fitted and custom-made kitchen furniture operating from a Business Park in Cambridge. The company has 250 employees and has been operating for 15 years. You are the HR Manager and you have received a letter of complaint from Sarah Mitchell. Sarah has only recently returned to work after caring for her two children for a number of years. She has completed a part-time design course at her local college over the past three years, achieving excellent marks. She has been looking for a full-time position for a couple of months, rather than the temporary jobs she has been able to obtain. Sarah applied for a job with MCK as a kitchen designer two months ago. She was given an initial interview but was not short-listed for a final interview. The position was offered to a recent graduate with a qualification in design, although they had not achieved as high a grade as Sarah.
A week after Sarah’s rejection letter from the company arrived she was having coffee in the local coffee shop when she recognised at the next table the person who had interviewed her at MCK, John Barnsley – the Design Studio Manager. She went up to him as she was leaving and she told him how disappointed she was not to get a final interview. He told her that she wasn’t really suitable for the job because she was 43 years old and the company wanted to present a ‘young designer’ image.
Sarah has written to you saying that, although she realised that the initial job advertisement had specified that the candidate be under 40 years of age, she thought she would be very good at the job and she felt it was unfair not to consider her because of her age.
You are asked to consider the legal implications of this situation and should outline the actions that may result from this complaint.
A law is defined as a system of guidelines and rules that are applied through social institutions to govern conduct, anywhere possible. Laws are prepared by the legislative arm of the government. They are intended to shape the society, economics, business and politics in numerous ways and serve as the social arbitrator of associations concerning people (Hayek, 2013, p. 457; Simamba, 2009, p. 2). The principal sorting criteria applied to laws is the distinction between private and public as explicitly intoned within the state action doctrine. This difference (whether private or public) controls how the law is defined and created, and powerful taxonomy of how it is prosecuted. In essence, the taxonomy characterises the laws in terms of the control over how the basic private and public institutions will exercise control over decision-making. Obviously, other more precise infra exist. In this respect, the proper categorisation of whether a law is a tort, contract or criminal law depends on the relative institutional capacities of the private and public actors (Gardner & Anderson, 2009, pp. 7-8; Lane, 2005, pp. 156-157).
There are distinctions that exist between criminal, tort and contract laws to identify them as either private or public laws. These distinctions reinforce the idea that fundamental differences exist between them. Firstly, contract laws are created privately, while the torts and criminal laws are created publicly to ensure that they have different sources. This implies that bringing to bear the coercive power of the courts is privately set for contract laws, and publicly set for torts and criminal laws. A contract goes a step further in specifying the legal obligations that the concerned parties will undertake. One would argue that since torts are created by the public, they are not private in nature. That is not true since they incorporate standards from the private practice. In essence, the classification is not based on whether the tort originated from official deliberative bodies, rather it is who controls the law between the public and private entities. In this case, the public authors the law and incorporates the language of the private entities. Secondly, criminal law can be coercively enforced by the public while contracts and torts may be difficult to coercively control and are privately enforced. This would imply that privately created laws, such as torts and contracts do not include privately policed norms or private agreements and must be distinguished from what courts can exercise their coercive power over. The ordering of laws into private and public classification within this general feature of law, accepting that all laws are public and social, preceding any person and confronting him or her as an entity that is outside itself, backed by the public (see Table 1; Barker & Jensen, 2013, p. 138).
Table 1. Public and private taxonomy of criminal, tort and contract laws (Source: Barker & Jensen, 2013, p. 138).
The taxonomic model applied to the law is intended to unify the different areas of the law, principally around the simple opinions concerning the relative advantage of private and public establishments. The differences between the two have been a matter of great debate, as seen in the A v. Home Secretary  UKHL 71 and A v. Home Secretary  3 WLR 1249 cases where the public and constitutional law scholars debated the significance of decisions in cases and impact of the taxonomy in judicial reasoning. In fact, they raised questions about the fusion of substantive classification, on the understanding that any legal system will have a common, elementary structure (Fenwick, Phillipson and Masterman, 2007, p. 379). Although the methods and the contents of laws differ among different systems, it is nonetheless conceivable and useful to view the systems as highly individuated progenies of an unadorned and impartial stencil. Identifying the right sort of impartial stencil reveals the deep connections within and among legal systems, links that reframe the larger question of why distinctions are made between criminal, tort and contract law (Cornell University Law School 2010). Also, it brings about the questions of: is there a way that the subject specific and complex legal issues can be reduced to trans-substantive and basic normative questions? Are the laws that govern the enforcement and interpretation of contract and tort laws similar to those that govern criminal law? Are the demarcations between tort, contract and criminal law universal legal categories or are they merely idiosyncratic developments within legal systems? The present analysis answers these questions by discussing the analytic power of the taxonomic basis at the heart of the idea that the fundamental distinction concerns private and private decision-making.
It is important to note that in as much as laws can be distinguished as either private or public, what appears to be private can always be characterised as private, and vice-versa. This was seen in the case of X v. Home Secretary  2 AC 68 when it was debated whether public actions could impact private agreements. After all, torts and contracts are public to the extent that they are enforced by public courts. Conversely, the public will express itself by acting through private persons who are engaged by the government. Similarly, X v. Home Secretary  UKHL 56 discusses the same issues. As such, the argument of whether or not a law can be demarcated as private or public is as predictable as the indeterminate differences between them. However, ignoring the distinction is to completely miss the basic taxonomy measure in any legal system. Indeed, separating private from the private law is an inevitable undertaking of any legal system, with the appreciation of the differences key to answering the previously presented questions. Achieving this separation and overcoming the indeterminacy requires that laws be accepted as having both private and public aspects.
This is exemplified when it is considered that torts and contracts are identified as private laws, but they are not entirely private since any damages are public court imposed and are adjusted to achieve the policy ends. This argument is accurate insofar as it goes since the majority of tort and private institutions do not solely govern contract laws. This is on the understanding that these laws adjudication must be initiated by a private person, are administered by a privately generated law, and are almost always (and not invariably) subjected to publicly determined solutions in the form of the court directed damages. The implication is that although tort and contract laws are intended for private use, their resolution requires input from both private and public institutions to ensure that the distinction informs the different aspects of the dispute separately. The narrow focus of the public and private aspects of tort and contract laws creates control over discrete legal decisions to avoid the determinacy problem (Barker & Jensen, 2013, p. 138).
Obviously, every legal system will grapple with the question of what constitutes public and private laws. This is because the private and public institutions must decide with respect to the law creation and prosecution on whether to act together or in isolation. As such, the taxonomy provides a description of the tangible decisions facing every legal system and both the public and private institutions. That is despite the fact that the concerned persons will not consciously think of the private-public distinction they face when constructing the system, that will end up governing their actions. The support for this ontological nature is derived from the neat alignment with the major distinction found across legal systems. In fact, all legal systems that have both private and public law acknowledge that a basic division exists, and by labelling and teaching it as such, establishing different doctrinal approaches that operate uniformly within each of the courts designated for private and public law practice. This is the de facto practice of divergent legal systems, offering an inherent distinction between the systems (Lane, 2005, pp. 156-157).
It is vital to recall that the taxonomy does not consider the wants of the parties, nor does it provide a normative critique of the legal system. Rather it provides a method for classifying criminal, contract and tort laws on the basis of the choices that they allow the concerned persons to make. This would imply that the classification is normatively inert since the laws are in themselves normative and attract institution consequences that could include the legal right to seek and receive damages. Also, it is important to remember that the taxonomy itself, the structural rules that it conforms to, and the two categories that it yields (public and private) have nothing to say about how the laws are applied and cases decided.
An age discrimination, with regards to employment, comes about when an individual is treated in a less than favourable manner when compared to other persons in similar positions as a result of age differences. This was the case in the present instance since Sarah’s application was rejected on the basis of her age and a younger person employed, even though Sarah had scored highly in the interview phase. The law is cognizant of this and has presented the Age Discrimination Act that makes it unfair for any personal to be unfairly treated within the public sphere as concerns commerce, education, and employment (Sargeant, 2011, pp. 146-147). Since, Magley Custom Kitchens (MCK) acted on a negative stereotype that a younger designer would have a more positive effect on the company’s image. This would imply that if Sarah can prove that she was denied an opportunity with the company on the basis of her age, then she can bring legal proceedings against the company for age discrimination.
Within the United Kingdom, age discrimination is covered under the Equality Act of 2010 that consolidated and replaced the fragmented anti-discriminatory legislation that had preceded it. These included the Equal Pay Act of 1970, the Sex Discrimination Act of 1975, the Race Relations Act of 1976, and the Disability Discrimination Act of 1995. In essence, the Equality Act of 2010 is an umbrella legislation that is intended to protect workers and job applicants from harassment, discrimination and other forms of unfair treatment concerning pension, retirement, promotion, pay, training, and recruitment based on age. This is intended to cover all age groups, whether young or old. The persons protected by this act include individuals who are applying for training, trainees, job applicants, current personnel, and persons whose working relationship with their employers has ended. In addition, the Act applies to all workers and employees, those who manage pay schemes, employers, trade unions, and training providers (Davies, 2011, pp. 134-135; Turner, 2013, p. 249).
The Act makes it unlawful for any person to be pointed out on the basis of his or her age unless that has been objectively pointed out. In this case, it specifically speaks to anyone who has been directly or indirectly discriminated against to include policies that disadvantage an individual on the basis of age, bully or harass any person and victimise whistleblowers. The implications of the Act extend to and affect general conduct at work, pension, retirement, redundancy, dismissal, social activities that are work-related, promotion, performance appraisal, benefits and pay, training, and selection, interviewing and recruitment (Davies, 2011, pp. 134-135; Turner, 2013, p. 249).
The Act makes provisions that allow for safe and reasonable objective justification for age discrimination. In this case, the discrimination must be proven to be truly necessary and legitimate as well as appropriate and proportionate. In fact, the onus is on the employer to provide the objective justification evidence to explain why the age discrimination was applied and can withstand scrutiny. For that matter, an age discrimination can be considered as lawful if the employer is able to show that the discriminatory actions or policies are based on legitimate and proportionate reasoning, rather than an unfair or unthinking or arbitrary treatment of an individual because of his or her age (Lewis & Sargeant, 2013, p. 33; Wright, 2014, p. 150).
The implication is that the Act prohibits employers from refusing to discharge, interview and hire a person because of his or her age. In fact, it supports employment for everyone provided the individual can carry out the work, rather than checking on ages. The message is that recruiting or rejecting anyone for a job or vocational training based on age is unlawful. This obviously has implications for advertising, job application forms, shortlisting, interviewing, selection, training of interviewers, documentation and record-keeping. Implications also extend to the way in which agencies that provide any of these recruitment services are briefed and managed (Davies, 2011, pp. 134-135; Lewis & Sargeant, 2013, p. 33; Turner, 2013, p. 249; Wright, 2014, p. 150).
Applying the Act to the present case of Sarah against MCK shows that she has a case against the company. This is because she was rejected and someone else employed on the basis of age, a clearly unlawful action. In addition, the fact that the company specified a preferred age and went on to employ someone who met its conditions is a clear indication that it violated the Act’s stipulations regarding the job application form, documentation, selection, interviewing and shortlisting. Although asking for applicants ages during the interview process is not unlawful, doing so with the intention of advancing age discrimination violates the Act. As a result, the simple fact is that MCK acted in an unlawful manner. This implies that Sarah can bring a case against the company (Davies, 2011, pp. 134-135; Turner, 2013, p. 249).
If Sarah intends to address the issue (that she was rejected because of her age) and follow-up on the matter, Sarah will need to make an age discrimination claim to the tribunal or court handling employment matters. In fact, she has a very strong case since discrimination cases do not require absolute proof. Instead they are reliant on the balance of probabilities test where the proof does not have to go beyond any reasonable doubt. This is despite the fact that she was never an employee of the company since the act makes provisions for applicants and allows that they should not be subjected to discrimination on the basis of age. If Sarah can establish facts concerning her age based discrimination from which the tribunal or court can conclude that the discrimination actually took place, the complaint will be upheld unless MCK can present an alternative credible explanation for the discrimination that has nothing to do with protecting or presenting the image of a ‘young designer’ (Davies, 2011, pp. 134-135; Turner, 2013, p. 249).
Should MCK be unable to prove its case and be found guilty of having acted in a discriminatory manner against Sarah, then the company may face three principal legal implications. Firstly, the company would be obligated to make a declaration that it was involved in discriminatory acts against Sarah. Secondly, it could be asked to pay an awarded compensation to Sarah in lieu of the financial loss she suffered and damages for the injury to her feelings. Thirdly, it could be asked to present new recruitment and employment policies that specifically address the discrimination and ensure that it does not occur or reduce its occurrence. This might involve employing Sarah to the original position that she had applied for or providing her with an opportunity to attend a fair interview that does not consider her age. In addition, the company could be obligated to publicise its employee selection criteria, retrain the interviewing and recruiting personnel, set up an employment review panel, and introduce equal opportunity policies (Davies, 2011, pp. 134-135; Turner, 2013, p. 249).
Sarah may consider the legal proceedings time consuming and stressful, thereby opting to settle the dispute without bringing it to the attention of the tribunal. In such a case, three options would be available to her. Firstly, she could reach an agreement with MCK whereby the issue is settled between the two parties. The agreement could cover compensation and future actions after the company has conducted an investigation concerning her grievance and determined that she has a case, and reasonable adjustments are necessary to include an official apology and reparation. Secondly, she can seek conciliation services that are arbitrated by a third party to ensure that they reach a claims settlement on terms that are agreeable to her and the company. Thirdly, she can qualify a compromise agreement whereby they have a written agreement with conditions that are tailored to meet the claim’s circumstances using the advice and services of an authorised legal representative who is insured against the risk of a claim arising from the advice (Cushway, 2014, p. 295; Rose, 2015, p. 283).
A v. Home Secretary  3 WLR 1249
A v. Home Secretary  UKHL 71
Cornell University Law School, 2010. Robertson v. United States, ex rel. Watson (08-6261). Retrieved from https://www.law.cornell.edu/supct/cert/08-6261
Cushway, B. 2014. The Employer’s Handbook 2014-15: An essential guide to employment law, 10th ed. London: Kogan Page Limited.
Davies, A. 2011. Workplace Law Handbook 2011: Employment Law and Human Resources. Cambridge: Workplace Law Group Limited.
Fenwick, H., Phillipson. G. & Masterman, R. 2007. Judicial Reasoning under the UK Human Rights Act. Cambridge: Cambridge University Press.
Gardner, T. & Anderson, T. 2009. Criminal Law, 10th ed. Belmont, CA: Thomson Higher Education.
Hayek, F. 2013. Law, Legislation and Liberty: A new statement of the liberal principles of the legal principles and political economy. London: Routledge.
Lane, J. 2005. Public Administration and Public Management: The principal-agent perspective. London: Routledge.
Lewis, D. & Sargeant, M. 2011. Employment Law Concentrate: Law revision and study guide, 2nd ed. Oxford: Oxford University Press.
Rose, F. 2015. Blackstone’s Statutes on Contract, Tort & Restitution 2015-2016, 26th ed. Oxford: Oxford University Press.
Sargeant, M. 2011. Age Discrimination: Ageism in employment and service provision. Surrey: Gower Publishing Limited.
Simamba, B. 2009. The Legislative Process: A handbook for public officials. Bloomington, IN: AuthorHouse.
Turner, C. 2013. Unlocking Employment Law. New York, NY: Routledge.
Wright, J. 2014. Unfair Dismissal Law, 4th ed. London: Lulu Press.
X v. Home Secretary  2 AC 68
X v. Home Secretary  UKHL 56