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This Practice Note outlines the law concerning criminal recklessness. The subjective test for recklessness Certain statutory and common law offences allow the prosecution to prove mens rea through ‘recklessness’. Put simply, recklessness is where the accused takes an unjustified risk that results in unlawful harm or damage. The House of Lords in R v G reaffirmed the subjective approach to recklessness. Before R v G, two distinct tests were used, depending on the offence charged: Subjective recklessness from R v Cunningham: the prosecution had to establish that the accused personally foresaw the risk. Objective recklessness from R v Caldwell: the prosecution only needed to show that the risk would have been obvious to a reasonable person, without proving the accused themselves foresaw it. In R v G, the House of Lords concluded that the objective test could operate unfairly where a defendant did not foresee the
This Practice Note examines the remedy of rescission, explaining when and in what manner a contract can be unwound (at common law, in equity and under statute) and thereby terminated and brought to an end. It covers the consequences and effects of rescission, the principal grounds for setting aside an agreement (misrepresentation, mistake, undue influence, duress, non‑disclosure, fiduciary misdealing and bribery) and the main obstacles to claiming rescission—affirmation, the intervention of third‑party rights and the impossibility of restitution. For further guidance on rescission in the context of misrepresentation, see Practice Note: Misrepresentation—rescission as a remedy. There are many ways in which a contract may reach its end; see: Terminating contracts—how and when a contract ends—overview for a brief and accessible summary, with links to the related further practical guidance, including Practice Note: Termination and expiry of contracts. For a table
What is a res judicata? A res judicata is a determination by a court or tribunal with jurisdiction over the cause of action and the parties, which finally disposes of the issues decided so they cannot be litigated again by those bound, save on appeal. Final judgments entered by default or by consent fall within this concept, whereas rulings on purely procedural points and any decision lacking finality do not. The doctrine’s aim is to bring litigation to an end and shield parties from being harassed by the same dispute twice. in personam—binds the parties and their privies in rem—binds all persons, privy or otherwise (ie a judgment binding the whole world) A party may rely on res judicata: as an estoppel to defeat an opponent’s claim or defence; and/or as the basis of their own claim or
The offence of causing grievous bodily harm with intent Wounding or causing grievous bodily harm (GBH) with intent can be tried solely in the Crown Court on indictment. Elements of the offence Under the Offences against the Person Act 1861 (OATPA 1861), the prosecution must establish that the defendant unlawfully and maliciously: wounded with the intention of causing GBH, or caused GBH with that intention, or wounded intending to resist or prevent the lawful arrest or detention of any person, or caused GBH intending to resist or prevent the lawful arrest or detention of any person ‘Unlawfully’ and ‘maliciously’ Unlawfully The wounding or causing of GBH must be unlawful. Such conduct may be lawful if used: in self-defence in defence of another in defence of property for the prevention of crime where the victim gave express or implied consent For further information on these defences, see below:
Most recent Practice notes
ARCHIVED: This Practice Note is archived and no longer updated. The Collective Redundancies and Transfer of Undertakings ( Protection of Employment) ( Amendment) Regulations 2014 ( TUPE Amendment Regs 2014), SI 2014/16, revised the Transfer of Undertakings ( Protection of Employment) Regulations 2006, SI 2006/246 ( TUPE 2006) and the Trade Union and Labour Relations ( Consolidation) Act 1992 ( TULR( C) A 1992) for relevant transfers occurring on or after 31 January 2014. This Practice Note sets out the amendments introduced, and the position that applied where the pertinent transfer under TUPE 2006 occurred before 31 January 2014. For comprehensive commentary on the TUPE Amendment Regs 2014, SI 2014/16, see News analysis: TUPE: detailed analysis of the changes and of the problems they may cause ( News, 5 February 2014). For guidance on the current position under TUPE 2006, see: TUPE and asset...
The Transfer of Undertakings ( Protection of Employment) Regulations 2006 ( TUPE 2006), SI 2006/246, confers extra protection on employees when a dismissal arises in the context of a transfer. EU‑sourced legislation, including much of TUPE 2006, enacted to give effect to the UK’s obligations under EU law (for example, Directive 2001/23/ EC, the Acquired Rights Directive ( ARD)), and still applicable in the UK at the end of the Brexit transition period/ IP completion day, continues in force as assimilated law. For further information, see Practice Note: Assimilated law. Enhanced protection against dismissal An individual benefits from this enhanced protection only if they can pursue an unfair dismissal claim—meaning they must be an employee (see Practice Note: Employee status) with the required two years’ continuous employment. For further information, see Practice Note: Entitlement to claim unfair dismissal......
This Practice Note This Practice Note addresses what is meant by a transfer of an undertaking, a transfer of a business, and a transfer of part of an undertaking or business within regulation 3(1)(a) of the Transfer of Undertakings ( Protection of Employment) Regulations 2006 ( TUPE 2006), SI 2006/246. It analyses the core components of an economic entity and the retention of identity—namely, whether that entity preserves its identity post-transfer—together with organised groupings of resources, whether a single employee can amount to an undertaking, the requirement for stability (a stable economic entity), and illegal purposes. It also considers how to determine if a relevant transfer occurs, transfers achieved through a series of transactions, the date on which the transfer takes place, share sales, intra-group transfers, the ‘going concern’ test ( Spijkers), temporary cessation of activities, the transfer of part of a business or...
This Practice Note provides guidance on how the Transfer of Undertakings ( Protection of Employment) Regulations 2006 ( TUPE 2006), SI 2006/246 apply to public sector transfers It summarises the policy and guidance that sit alongside TUPE 2006 to safeguard public sector workers’ pensions, and addresses: Exceptions for administrative reorganisations of public administrative authorities, and the movement of administrative functions between such authorities Transfers within central government, the effect of the Cabinet Office Statement of Practice ( COSOP), and TUPE‑equivalent protection Shifts from public to private sector, the Two‑ Tier Code ( Wales), Principles of Good Employment Practice, and Good Practice for managing the consequences of outsourcing and privatisation Fair Deal policy, Best Value Authorities, the Best Value Direction, and Quality Contracts Schemes It further explains that EU‑derived provisions, including much of TUPE 2006 made to meet the UK’s...
ARCHIVED: This Practice Note has been archived and is no longer maintained or updated. TUPE 2006, PF2s and other PPPs Public/private partnership ( PPP) projects, including Private Finance 2 ( PF2) initiatives, may involve transfers of undertakings and changes to service provision that fall within the Transfer of Undertakings ( Protection of Employment) Regulations 2006 ( TUPE 2006), SI 2006/246. TUPE 2006 was revised in several aspects, including service provision changes, by the Collective Redundancies and Transfer of Undertakings ( Protection of Employment) ( Amendment) Regulations 2014, SI 2014/16. Where it is uncertain whether TUPE 2006 applies as a strict matter of law, wider political pressures often, in practice, lead the parties to proceed on the basis that it does, which is frequently reflected in the project documentation itself. Guidance on staff transfers in the public sector Alongside meeting the statutory duties in full under TUPE 2006 (as...
The aim of this Practice Note is to set out the main issues that arise for employee share schemes on a transaction to which the Transfer of Undertakings ( Protection of Employment) Regulations 2006 ( TUPE 2006), SI 2006/246 apply. It addresses how TUPE affects these schemes in the UK. TUPE— Key Provisions TUPE 2006, SI 2006/246 applies where there is a ‘relevant transfer’. Broadly speaking, and in very broad terms, this encompasses two principal scenarios: business transfers, ie the transfer of an undertaking, business, or a part of one, situated in the UK immediately before the transfer, to another person, where an economic entity is transferred and which retains its identity a service provision change, meaning a change in service provider, ie a client outsourcing work to a contractor, bringing the work back in-house, or allocating that work to a...
FORTHCOMING CHANGES: An Equality and Human Rights Commission ( EHRC) consultation ran from 2 October 2024 to 3 January 2025, inviting views and responses on revising the statutory Code of Practice on services, public functions and associations, so it captures significant and notable shifts in legislation and case law since its original 2011 publication. In the wake of the Supreme Court judgment delivered in For Women Scotland v Scottish Ministers, after also stating it would work ‘at pace’ to embed the ruling’s implications specifically within the refreshed Code, and thereafter issuing an interim update on the practical effects of the UK Supreme Court judgment on 25 April 2025, the EHRC subsequently opened a further consultation on additional amendments to the Code of Practice, running from 20 May 2025 to 30 June 2025. For detailed information, see also: LNB News 02/10/2024 23, Law360: EHRC to update legal...
This Practice Note This Practice Note addresses the statutory meaning of a trade union within the Trade Union and Labour Relations ( Consolidation) Act 1992 ( TULR( C) A 1992), and the legal capacities a union may exercise across various contexts. It outlines a union’s ability to: enter into contracts participate in civil proceedings be prosecuted for criminal offences hold property in trust and the mechanisms for enforcing a judgment against a union Both workers and employers can organise in bodies commonly described as ‘unions’. For employers these bodies are typically known as employers’ associations. Workers likewise create organisations to support and advance members’ interests, usually called trade unions. However, for workers, belonging to a trade union generally carries far greater significance than an employer’s membership of an employers’ association does for the business. In particular, union...
This Practice Note outlines the legal framework and day‑to‑day practice around paying trade union dues, including payroll deductions known as ‘check‑off’, together with the requirement that any sums taken from wages are authorised by the worker. It also explores the position in relation to public sector employers, whether a trade union can enforce check‑off as a third party, and the nature of claims and potential remedies where deductions are made without authorisation. Authorisation by employee Many employers agree arrangements with one or more trade unions under which the employer deducts union subscriptions from the pay of workers who are also union members. In legislation this is described as a ‘subscription deduction arrangement’, but it is more commonly called ‘check‑off’, also known as ‘ Deduction Of Contributions at Source’ or the DOCAS system. However, even where such arrangements operate, an employer must not take any...
This Practice Note explores the guidance and support available to trade union members. It outlines the entitlement to be accompanied by a trade union representative at any disciplinary or grievance meeting with an employer, access to legal advice and assistance from the union, and the union’s ability to secure a binding settlement. Union membership gives an individual worker access to advice and other forms of assistance from the union in a range of work-related settings, with support available across numerous workplace contexts and situations. Representation by a trade union in dialogue with an employer A worker has a statutory entitlement to be accompanied by a union representative—either an employee of the union, or an official the union has certified as suitably qualified—at any disciplinary or grievance hearing with their employer (see Practice Note: The right to be accompanied). This entitlement is not...
This Practice Note sets out an introduction to trade union recognition, covering what it is, how voluntary and compulsory recognition differ, the steps for making a reference to the Central Arbitration Committee ( CAC) for compulsory recognition, and the rights that flow from recognition. It also addresses the procedure where a recognised bargaining unit changes and the process for derecognition. Labour’s General Election win in 2024 significantly tilted the political landscape in favour of trade unions and their recognition at work. Alongside reforms to balloting and industrial action, Labour brought forward legislation to simplify the route to trade union recognition and to grant unions a right of access to workplaces, aimed at assisting unions seeking recognition. For further detail, see Practice Note: Right of trade unions to access workplaces. What is trade union recognition? Trade union recognition arises where an employer agrees to work with an...
An employer might recognise a trade union for various purposes, and at any of several possible levels. Conversely, even if a significant proportion of the workforce belongs to a particular trade union, the employer concerned may still choose not to recognise that union for any purpose, or at any level. Regarding purpose, an employer can grant recognition for a set of specified matters connected to its relationship with its workforce, whilst declining recognition in relation to other, comparable matters. Levels of trade union recognition Union recognition may exist at different levels in terms of the breadth of employees covered and the premises included across the organisation. This can vary between sites and employee groups within the same employer......
This Practice Note explores the processes for altering union recognition arrangements, especially where the bargaining unit is no longer suitable or has stopped existing. It further assesses the implications and outcomes of the Central Arbitration Committee ( CAC) establishing a new bargaining unit. The Note then reviews the range of situations in which derecognition might occur in practice. Administrative requirements Any application to the CAC made under the procedures outlined here for changes affecting bargaining units must satisfy relevant specified requirements contained in Schedule A1, Part III to the Trade Union and Labour Relations ( Consolidation) Act 1992 ( TULR( C) A 1992)......
FORTHCOMING CHANGE The Employment Rights Act 2025 ( ERA 2025) creates a fresh obligation on employers to issue workers with a written notice explaining their right to join a trade union. It inserts a new section 136A into the Trade Union and Labour Relations ( Consolidation) Act 1992 and requires employers to provide this notice at the same time as the section 1 Employment Rights Act 1996 statement of written particulars of employment. Compliance is overseen through the existing mechanism used where an employer fails to supply the written particulars of employment, as set out in section 38 of the Employment Act 2002 (as amended). Further regulations will prescribe additional points, including the format, how often it must be given, and the way in which the notice is communicated to workers. In line with the common commencement dates, the obligation is expected to take effect in...
Practice Note This Practice Note explores how to apply to be entered on the list as a trade union, or to be certified as an ‘independent trade union’, and explains the function of the Certification Officer. It also considers the importance of independence and the way it is evaluated. Guidance from the Certification Officer Apply to be on the official list of trade unions or employers’ associations ( February 2024): guidance on eligibility, the application steps and form CO1. Apply to be removed from the list of trade unions and employers’ associations ( February 2024): guidance on how an organisation can be taken off the list of trade union and employers’ associations. Apply for a Certificate of Independence ( February 2024): guidance for trade unions seeking to demonstrate they are independent from employers. Mergers between trade unions and between...
This Practice Note explores the entitlement not to be excluded or expelled from a trade union, the situations in which that entitlement may cease to apply under statute and the common law, together with the mechanisms for enforcing the right. An individual benefits from a statutory right not to be excluded from, or expelled by, a trade union except in certain specified situations. There is, in addition, a more restricted common law protection concerning exclusion or expulsion. For information: on the statutory right of a trade union member not to be unjustifiably disciplined by their union, see Practice Note: Discipline by trade unions on the rights that arise in specified circumstances relating to the activities of a trade union, see Practice Note: Rights relating to activities involving unions Common law right An individual who has applied to join a trade union may have a right not to...
Summary of obligations A trade union is subject to a number of statutory obligations, including the following that apply: it must compile and maintain a register of members’ names and addresses, and must ensure, so far as practicable, that this register is accurate and kept up to date It must also send a membership audit certificate to the Certification Officer in respect of each reporting period, stating whether the union has complied with its obligation to maintain the register and keep it up to date......
ARCHIVED: The Trade Union Act 2016 ( TUA 2016) The TUA 2016 introduces a series of significant and contentious reforms to the legal framework governing trade unions and industrial action. This archived Practice Note: charts the evolution and current position of TUA 2016 sets out the provisions that have not yet been commenced Development and status of the Act In the Queen’s Speech 2015, the Government signalled a Trade Union Bill that would: make a strike ballot valid only where more than 50% of a union’s members vote (while keeping the requirement for a simple majority in favour) introduce time limits on the duration of a mandate following a ballot for industrial action require, in specified essential public services (eg health, education, fire, transport), that 40% of those entitled to vote back industrial action tackle intimidation of workers who choose not to strike during a...
Trade union rights relating to union activities This Practice Note reviews trade union rights connected to union involvement, covering time away from work for union duties and/or activities, and for union learning representatives, where relevant. It also summarises any publication obligations that public authorities may have had, in particular up to 18 February 2026, concerning time off for trade union duties. The Note explains the protection against detriment and/or dismissal arising from taking part in union activities, accessing union services, or union recognition. It further highlights the Acas Code of Practice on time off for both trade union duties and activities in this area. Several individual statutory rights can arise in defined situations linked to trade union activity: trade union officials have a right to reasonable paid time off within working hours to carry out specified trade union duties (see Time off for trade union...
The employment tribunal’s authority to consider claims arises from legislation (for instance, the unfair dismissal jurisdiction stems from the Employment Rights Act 1996 ( ERA 1996)). The deadlines for submitting such claims are likewise contained in the relevant statute (for example, the three-month period for an unfair dismissal claim appears in ERA 1996, s 111). If a claim is not made within the applicable time limit, it falls outside the tribunal’s jurisdiction and cannot be heard unless the tribunal concludes that time should be extended in accordance with the principles applicable to that particular type of claim. This Practice Note examines these jurisdictional time limits for first presenting a claim to the tribunal, and the scope for extending them......
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This Practice Note This Practice Note reviews mechanisms used in settling litigation. A Tomlin order consists of a consent order paired with a schedule. It operates to stay proceedings on terms that have been agreed. The provisions contained in the schedule may remain confidential. This Practice Note describes the scope of confidentiality attaching to the schedule and sets out how it differs from a standard consent order. Sample wording for a Tomlin order is included, alongside links to precedents, as well as guidance on court approval. It also addresses varying, setting aside and enforcing a Tomlin order, including the considerations the court will take into account when handling applications for each. Further guidance is provided on interpreting and applying the relevant provisions of the CPR; however, some courts and divisions impose very specific requirements for both drafting and approval, and for approaching the schedule and confidentiality issues. Accordingly, you must consider the particular rules and court guide provisions in the forum where your claim is proceeding when drawing up the Tomlin order...
Date [ date ] Parties [ name of Landlord ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Landlord) [ name of Tenant ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Tenant) [ [ name of Guarantor ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Guarantor) ] [ [ name of Mortgagee ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Mortgagee) ] Definitions Within this Deed, the terms below shall be interpreted as follows: [ Annual Rent • the annual sum reserved under the Lease; ] [ Insurance Rent • the Tenant’s share of the Landlord’s costs of insuring the Property (as set out in the Lease); ] Lease • the lease of the Property dated [ date ], entered into between (1) [ the Landlord OR [ name ...
I, [ name ], of [ address ], solemnly and sincerely state that: [ Matters to be verified, set out in numbered paragraphs ] I make this solemn statement in good conscience, believing it to be true, and pursuant to the provisions of the Statutory Declarations Act 1835. DECLARED at [ details ] this [ day ] day of [ month and year ] Before me ................................................................................ [ signature of the person before whom the declaration is made ] A [ commissioner for oaths OR [ solicitor OR [ insert other qualification ] ] authorised to administer oaths ]...
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