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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:
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Territorial application, scope or reach of relevant applicable or mandatory law This Practice Note explores the territorial application, reach and scope of applicable or mandatory rules, namely, how the courts and employment tribunals decide which statutory rights (if any) attach to an employee who works overseas and/or is engaged by a foreign employer. It has been revised to reflect Brexit and the conclusion of the implementation period ( IP) for the Withdrawal Agreement on IP completion day (11 pm on 31 December 2020) as it relates to this area of law. Between 1 January 2021 and the close of 2023, there was no alteration to the law affecting how UK courts approach the territorial scope of statutory employment rights, this being a domestic question. Additionally, the supremacy of EU law was, to a large extent, maintained by the European Union (...
Certain sums paid when an employment or office ends can be received free of tax. In practice, many of these reliefs are easily overlooked. A termination payment may escape tax because it fits within the £30,000 exemption, because the whole amount is specifically relieved by statute, or because it is not regarded as employment income at all. These reliefs apply only to payments that would otherwise be taxable as termination payments within section 401 of the Income Tax ( Earnings and Pensions) Act 2003 ( ITEPA 2003). They do not extend to amounts chargeable under other provisions as earnings, benefits, payments for restrictive covenants, or sums from an employer financed retirement benefits scheme, as those other charging rules ( ITEPA 2003, ss 62, 63–214, 225 and 394) take precedence—see Practice Note: Termination payments and tax. Those statutory charging rules in ITEPA 2003, ss 62,...
This Practice Note sets out the legal and practical considerations when terminating the employment of a senior executive or an executive director. Introduction Multiple factors must be addressed when planning the dismissal of a senior executive. Extra points arise if the person also serves as a director. This Note outlines these matters and directs readers to further, more detailed, resources. Tactical issues When contemplating dismissal of a senior executive, an employer should consider: how any potential disruption to the business can be reduced; how the departure should be communicated to fellow executives and remaining staff, and what explanation should be provided; how quickly the dismissal could and should proceed. While these factors apply to any employee, extra complexities arise with senior executives, and additional ones where the executive is also a director, including removal from office, payment for and disclosure of loss of office, and...
This Practice Note This Practice Note explores the legal and practical concerns for an employer during a team move, where one or more employees entice or headhunt fellow employees of the current employer to join a new employer or to start a business on their own account. The move may have been coordinated by the incoming employer. Such team moves have generated numerous employee competition cases, and the law has evolved in response to this trend. From the earlier position that the general law did not prevent employees, acting in concert, from leaving to compete (see Searle v Celltech), team moves are now laden with legal challenges for the existing employer, the departing staff and their prospective employer. This Practice Note concentrates on the issues affecting the current employer in a team move setting. For discussion of the various legal and practical...
This Practice Note This Practice Note explores the legal considerations triggered by a co-ordinated departure, where multiple partners of the same partnership or members of the same LLP leave to establish their own venture or join a rival of the partnership or LLP. It assesses potential unlawful behaviour and the scope of duties owed by partners and members under the Partnership Act 1890 ( PA 1890), the Limited Liability Partnerships Act 2000 and the default rules in the Limited Liability Partnerships Regulations 2001, SI 2001/1090 ( LLPR 2001). The significance of express terms in partnership deeds and LLP agreements is emphasised. Practical considerations are outlined, together with guidance on garden leave and post-termination restraints addressing competition, solicitation or the poaching of clients and/or other employees. Finally, remedies are reviewed, including springboard relief. Comparable issues arise when analysing a team move from an employer. For further...
The Employment ( Allocation of Tips) Act 2023 ( E( AT) A 2023) The Employment ( Allocation of Tips) Act 2023 ( E( AT) A 2023) imposes a statutory duty on employers in all industries to pass on to workers, without deductions, every tip, gratuity and service charge they receive or over which they hold control or material influence (qualifying tips), and to ensure distribution is fair and transparent. While it leaves untouched the rules on the taxation of tips, gratuities and service charges, its purpose is to guarantee that customer payments of this kind are allocated to workers. The Act is reinforced by a statutory Code of Practice on Fair and Transparent Distribution of Tips, together with non-statutory guidance. For further detail on the legal framework governing the payment and allocation of tips, gratuities and service charges, see Practice Note:...
This Practice Note This Practice Note outlines protections for shop and betting staff under the Employment Rights Act 1996 ( ERA 1996) in relation to . It explains how the law applies to different groups of these workers, depending on when they began employment and whether their contract stipulates . It also addresses: the employer’s duty to provide, within the first two months of employment, a written explanatory statement setting out the relevant rights the mechanisms for opting in and opting out of potential claims where employees are dismissed or subjected to a detriment connected to It further considers indirect religious belief discrimination rights, potentially open to all workers across all sectors, which may permit claims under the Equality Act 2010 ( Eq A 2010) where a worker seeks to avoid working on a particular day of the week for...
FORTHCOMING CHANGE: On 6 August 2024, the government publicly signalled its plan and commitment to repeal the Strikes ( Minimum Service Levels) Act 2023 (the Strikes Act 2023). Following that statement, clause 61 of the Employment Rights Bill, introduced on 10 October 2024, expressly sets out the repeal of the Strikes Act 2023 together with the reversal of its amending provisions to Part V of the Trade Union and Labour Relations ( Consolidation) Act 1992. Clause 118 of the Bill confirms that these repealing provisions will come into force on the day on which the Employment Rights Act 2025 is passed. For more information on the Employment Rights Bill, in general, see Employment News Analysis: The Employment Rights Bill, and Employment Rights Bill 2024 – views from the sector, LNB News 10/10/2024 85. To track the Bill’s progress through Parliament, see Practice Note:...
This Practice Note outlines the shared parental pay ( SPP) framework applicable to the adoption of a child. The legislation that establishes shared parental pay (the Shared Parental Pay ( General) Regulations 2014) took effect on 1 December 2014. However, the entitlement to claim SPP only applies to children placed for adoption on or after 5 April 2015. For the present rate of shared parental pay, see Practice Note: Employment-related statutory rates and limits— Maternity, parents and carers. Guidance and other materials Various guidance and resources are available. Acas guidance Acas has produced guidance documents, along with certain template materials. See Acas materials on shared parental leave and pay. Government guidance The government has issued a detailed 66-page guidance document aimed at employers. See: As well as setting out the shared parental leave and pay system in general terms, this guide includes helpful content for handling less typical...
This Practice Note This Practice Note examines workers’ statutory entitlement, when employment ends, to a payment in lieu of paid annual leave (holiday pay) accrued but untaken at termination. It flags the amendments taking effect on 1 January 2024 and outlines the right under regulation 14 of the Working Time Regulations 1998 ( WTR 1998), SI 1998/1833, together with the statutory method for calculating a leaver’s payment in lieu. It also addresses Article 7 of the Working Time Directive ( WTD) and its relevance to pre-1 January 2024 matters where annual leave from earlier leave years is carried over. The Note further considers situations where, on exit, a worker has taken more leave than accrued, and whether an employer may rely on a relevant agreement to govern payments on termination, eg for bad leavers. In each leave year, workers in Great Britain have a...
Paid holiday benefits both employers and workers by allowing workers a period of relaxation and recuperation. Entitlement to paid annual leave may arise as a statutory right (ie stemming from legislation) or a contractual one (ie flowing from the terms of the employment contract). This Practice Note examines enforcement and claims concerning the statutory right of UK workers to 5.6 weeks’ paid annual leave. From the outset, note this is made up of two parts: a core entitlement to four weeks’ paid annual leave (often called ‘ Euro leave’), and a further entitlement to 1.6 weeks’ paid annual leave Distinct provisions will apply to irregular hours and part-year workers (as defined in WTR 1998, SI 1998/1833, reg 15F) for holiday years starting on or after 1 April 2024. For further detail, see Practice Note: Statutory paid holiday—irregular hours workers and part-year workers. For Northern Ireland, which has its own...
Paid holiday benefits both employers and workers by allowing workers a period of relaxation and recuperation. Paid annual leave rights may arise from statute (ie through legislation) or from contract (ie via terms in the employment contract). This Practice Note addresses the position of: all workers for leave years starting on or before 31 March 2024 workers other than irregular hours and part‑year workers for leave years starting on or after 1 April 2024 It does not cover irregular hours and part‑year workers (as defined in WTR 1998, SI 1998/1833, reg 15F), for whom distinct rules apply for holiday years commencing on or after 1 April 2024, including in relation to: how holiday pay is calculated, and the ability to use rolled‑up holiday pay The position of those workers is set out in our separate Practice Note: Statutory paid holiday—irregular hours workers and part‑year workers. This Practice Note examines the...
This Practice Note sets out the current position regarding statutory neonatal care leave ( NCL), and statutory neonatal care pay ( NCP), through which working parents whose babies enter neonatal care may take as much as 12 weeks’ in total paid absence. For a definition of neonatal care, refer to: What is meant by neonatal care, below......
The right to paid holiday arises under statute and can additionally stem from contractual terms. This Practice Note examines the pay a worker should receive during periods of statutory leave from work. The statutory method for calculating that pay is equally pertinent and must be applied on termination, when working out any sum payable in lieu of accrued but unused annual leave (see Practice Note: Statutory paid holiday—payment on termination as appropriate). This Practice Note deals with the position of: all categories of workers for leave years starting on or before 31 March 2024 workers other than irregular hours and part-year workers for leave years commencing on or after 1 April 2024, within the scope of this note It does not address irregular hours and part-year workers (as defined in WTR 1998, SI 1998/1833, reg 15F), for whom different provisions specifically apply for holiday years...
This Practice Note This Practice Note explores the circumstances that trigger the statutory duties to provide information and consult in a collective redundancy scenario—namely the legal requirement to consult when multiple redundancies are proposed: 20 or more, at a single establishment, within a 90-day period or less—under the Trade Union and Labour Relations ( Consolidation) Act 1992 ( TULR( C) A 1992). It examines when an employer is ‘proposing to dismiss as redundant’, how to determine the correct number of employees, the meaning of ‘at one establishment’, and the implications of the definition of ‘employer’ used in TULR( C) A 1992. It also considers other collective consultation obligations. For detailed guidance on the statutory information and consultation duties themselves, see Practice Note: Collective redundancy—statutory information and consultation obligations. Information and consultation are essential components of any fair dismissal and, if an employer wishes to...
Statutory paid holiday In Great Britain, workers have a legal entitlement to 5.6 weeks’ paid annual leave under the Working Time Regulations 1998 ( WTR 1998), SI 1998/1833. It should be recognised from the start that this is made up of two components: a core entitlement of four weeks’ paid annual leave (often called ‘ Euro leave’) ( WTR 1998, SI 1998/1833, reg 13), and an extra 1.6 weeks’ paid annual leave ( WTR 1998, SI 1998/1833, reg 13A) Different rules apply to irregular hours and part-year workers for holiday years beginning on or after 1 April 2024. For further details, see Practice Note: Statutory paid holiday—irregular hours workers and part-year workers. For the position in Northern Ireland, which has its own Working Time Regulations ( Northern Ireland) 2016, SI 2016/49, see Practice Note: Employment law in Northern Ireland— Working Time Regulations and...
This Practice Note considers statutory adoption pay ( SAP) and contractual adoption payments. It also examines eligibility criteria, the meaning of employed earner, the duration of entitlement, notice obligations, the evidence required, the length of time SAP is payable, rates of pay, and liability, including where an individual has more than one employer. It addresses outcomes where a child dies or a placement breaks down, circumstances in which SAP is not due, record-keeping duties, and how recoupment operates. Finally, it explores how contractual sick pay interacts with SAP, adoptions from outside the UK, and contracting out. A parent taking adoption leave (see Practice Note: Adoption leave) may qualify for SAP for part of that leave. They may receive payment for time off to attend adoption appointments (see Practice Note: Time off work for adoption appointments). Where a child is placed for adoption, the adopter and a...
Statutory adoption leave An employee planning to adopt a child under 18 could qualify to take up to three categories of statutory leave: ordinary and additional adoption leave paternity leave (see Practice Note: Paternity leave and pay) shared parental leave (see Practice Note: Shared parental leave (adoption)) That said, a single adopting parent cannot take all three. Subject to circumstances, parents adopting a baby might also qualify for: statutory parental bereavement leave and pay (see Practice Note: Parental bereavement leave and pay) statutory neonatal care leave and pay (see Practice Note: Neonatal care leave and pay) This Practice Note addresses statutory adoption leave under the Employment Rights Act 1996 ( ERA 1996) and the Paternity and Adoption Leave Regulations 2002 ( PAL Regulations 2002), SI 2002/2788. For statutory adoption pay ( SAP), see Practice Note: Statutory adoption pay. If both parents are adopting, they must nominate which one will be the...
This Practice Note This Practice Note sets out when an employee can receive a payment from the state guarantee fund (the National Insurance Fund), i.e. a ‘fund payment’, and identifies the categories of employer liability that can trigger such a payment. It addresses sums due from an employer to an employee as a statutory redundancy payment, a sum due under a formal settlement agreement, and a sum due under a collective agreement, where the employer either declines to pay or is unable to do so because it is insolvent following a voluntary liquidation or compulsory liquidation process, a winding-up order being made, or the opening of collective insolvency proceedings. It further covers interest accruing on late payment, the steps for bringing a claim, the relevant limitation periods, the information to be supplied to the Secretary of State (the Insolvency Service), and the transfer (by...
This ‘ How to’ guide outlines the matters an employer should weigh up when deciding whether a worker ought to be paid during sickness absence and, if so, the level of pay due. It also touches on connected questions and remedies. It also considers related issues and remedies. A worker who cannot work because of ill health may still, during their sick leave, be paid: statutory sick pay ( SSP) under the Social Security Contributions and Benefits Act 1992 ( SSCBA 1992) and the Statutory Sick Pay ( General) Regulations 1982 ( SSP ( General) Regs 1982), SI 1982/894 (see: Whether an individual is entitled to be paid SSP below), and/or contractual (or ‘occupational’) sick pay (see: Whether an individual is entitled to be paid contractual sick pay below) For fuller guidance on SSP and contractual sick pay, see Practice Note: Sick pay. The...
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When evaluating a general damages claim, the practitioner ought initially to refer to the Judicial College Guidelines (JCG)...
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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