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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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Under section 80F of the Employment Rights Act 1996 ( ERA 1996), an employee has a statutory entitlement to ask their employer to make defined changes to their contract terms (ie to submit a flexible working request). The core elements of this entitlement are outlined below. The statutory framework for flexible working is contained in sections 80F to 80I of the ERA 1996 and the Flexible Working Regulations 2014, SI 2014/1398. On 6 April 2024, a series of reforms took effect to broaden opportunities for flexible working. These are summarised in Changes to the statutory scheme in force from 6 April 2024, below. The statutory scheme is supported by the Acas Code of Practice on requests for flexible working ( Acas flexible working Code), which took effect on 6 April 2024, together with Acas non-statutory advice. For further...
This Practice Note This Practice Note considers a woman’s entitlement to return to work after maternity leave under sections 71 and 73 of the Employment Rights Act 1996 ( ERA 1996) and the Maternity and Parental Leave etc Regulations 1999 ( MAPLE 1999), SI 1999/3312, as a matter of statutory right. Broadly speaking, where only ordinary maternity leave ( OML) is taken, she is entitled to resume the ‘same job’ when that leave ends, unless that position is no longer available (see: Return from maternity leave and Return to same job, below). A woman who also takes a period of additional maternity leave ( AML) is likewise entitled to return to her former role, unless it is not reasonably practicable for her to be permitted to do so (see: Qualified right to return, below). The right to return applies: at the conclusion of AML, if no...
ARCHIVED: This archived Practice Note considers the position in relation to retained EU law ( REUL) in the employment field to 31 December 2023. After that date, the position altered substantially when key elements of the Retained EU Law ( Revocation and Reform) Act 2023 ( REUL( RR) A 2023) took effect on 1 January 2024. For further guidance, see Retained EU Law ( Revocation and Reform) Act 2023 below, and Practice Note: Retained EU law ( Revocation and Reform) Act 2023—impact on employment law. Before exit day (31 January 2020), EU law operated in the UK via the European Communities Act 1972 ( ECA 1972). On exit day, the European Union ( Withdrawal) Act 2018 ( EU( W) A 2018) repealed ECA 1972, subject to savings introduced by the European Union ( Withdrawal Agreement) Act 2020 ( EU( WA) A 2020), to give effect to the...
Retained EU Law ( Revocation and Reform) Act 2023 The Retained EU Law ( Revocation and Reform) Act 2023 ( REUL( RR) A 2023) overhauls the framework set by the European Union ( Withdrawal) Act 2018 ( EU( W) A 2018). It has a marked effect on the status and treatment of what had been retained EU law ( REUL); from 1 January 2024, by virtue of the Act, this is recognised as assimilated law. The legislation also confers a broad set of powers enabling the further amendment, repeal, and substitution of assimilated law over time. REUL( RR) A 2023 came into force in part on 29 June 2023, with additional provisions taking effect on 29 August 2023, and the remaining elements commencing on appointment. It was brought into force on 1 January 2024, save for section 6 ( Role of courts). For...
Key concepts REUL( RR) A 2023 This Practice Note considers how the Retained EU law ( Revocation and Reform) Act 2023 ( REUL( RR) A 2023) affects employment law. At a high level, the immediate effect has been limited, because the timetable for the current proposed employment law reforms allowed advisers and employers to prepare for roll‑out. Looking ahead, however, the legislation sets the stage for volatility, as REUL( RR) A 2023 permits amendment, alteration, replacement or restatement of retained EU law ( REUL). Crucially, the revised approach to interpreting REUL, together with wider scope for courts to depart from it, raises the likelihood that uncertainty will persist until lengthy litigation applies the new tests and procedures... Since 1 January 2024, REUL that persists is generally labelled ‘assimilated law’, in line with REUL( RR) A 2023, s 5 (see: Assimilated law below, and Practice Note:...
The Financial Reporting Council’s UK Corporate Governance Code ( UKCG Code) stands as the benchmark for effective governance for companies with a listing of equity shares in the equity shares (commercial companies) category. It sets out a series of recommendations on directors’ remuneration, including the requirement for such companies to establish a remuneration committee. This Practice Note examines the UKCG Code alongside other best practice guidance on how the remuneration committee should be composed, the committee’s remit and accountabilities, and the principles to apply when setting director remuneration policy and remuneration levels. For details on the remuneration of directors of companies with a listing of equity shares in the equity shares (commercial companies) category more generally, see Practice Note: Directors’ remuneration—quoted companies. The UKCG Code, the UK Listing Rules and the DTRs For general information on the application, purpose and provisions of the UKCG Code, and the...
This Practice Note explores how ‘religion’ and ‘belief’ are defined for the purpose of the protected characteristic of religion or belief in relation to religious discrimination and other prohibited conduct under the Equality Act 2010 ( Eq A 2010), and sets out the criteria for a religious or a philosophical belief to receive protection... Protected characteristics Eq A 2010 protects against discrimination connected to specified characteristics that individuals may hold. Certain protections apply solely to one such characteristic, while others operate uniformly across all of them, collectively known as ‘the protected characteristics’. With the exception of pregnancy and maternity, each protected characteristic is identified and defined in Eq A 2010. For an overview of protected characteristics generally, see: Protected characteristics—overview. This Practice Note focuses on the protected characteristic of religion or belief... Definition of religion or belief Under Eq A 2010, ‘religion’ means any religion and also...
This Practice Note reviews the Coronavirus Statutory Sick Pay Rebate Scheme ( CSSPRS), temporarily reinstated by the Statutory Sick Pay ( Coronavirus) ( Funding of Employers’ Liabilities) Regulations 2022 ( SSP Funding Regs 2022), SI 2022/5, in force from 14 January 2022. The reintroduced CSSPRS applied to coronavirus-related sickness absence between 21 December 2021 and 17 March 2022. Employers were able to reclaim coronavirus-related SSP via the online service until 24 March 2022, which has since closed. For further detail, see: LNB News 25/02/2022 13... Key points to note The government’s plan to reimburse coronavirus-related statutory sick pay was first outlined in the Spring Budget 2020 (see News: Special temporary measures for Statutory Sick Pay ( SSP) refunds announced in Budget). Section 39(1) of the Coronavirus Act 2020 inserted a new funding mechanism into the Social Security...
Re-engagement This Practice Note considers when re‑engagement will be directed as a remedy under section 112 of the Employment Rights Act 1996 ( ERA 1996) after a finding of unfair dismissal. It addresses the tribunal’s obligation to ask the employee if re‑engagement is sought and, if so, to consider making an order for re‑engagement. The Note then explores the situations in which re‑engagement may be ordered, the required contents and effect of a re‑engagement order, and how arrears of pay and other benefits are calculated. It explains that a second‑stage re‑engagement hearing will take place where the order has not been complied with, whether partially or at all, including calculation of an additional award under ERA 1996, s 117 if the tribunal finds it was practicable for the employer to comply with the re‑engagement order. Re‑engagement is one of the orders a tribunal may make under ERA...
This Practice Note This Practice Note considers why a fair process is required when ending employment by reason of redundancy, and sets out the steps that should feature in such a process. Where there is no statutory duty to consult existing employee representatives (see Practice Note: Collective redundancy—the triggers for the statutory consultation obligations), an employer may still choose to consult to support fairness for unfair dismissal purposes and to foster sound industrial relations, particularly where a collective bargaining agreement provides for this. For the approach to follow when statutory consultation applies, or where consultation with union or other employee representatives is otherwise necessary, see Practice Note: Collective redundancy—statutory information and consultation obligations. This Practice Note gives guidance on a fair procedure where: the statutory collective consultation obligations do not apply, and there is no other obligation (or need) to consult union or other...
Redundancy Redundancy is among the five routes by which an employer may unilaterally bring an employment contract to an end, in circumstances where that termination may constitute a potentially fair dismissal. The other four potentially fair grounds for dismissal are: the employee lacks the capability to perform the role the employee’s conduct renders continued employment untenable the employee cannot remain in the post without breaching a legal restriction the residual category of ‘some other substantial reason’ Section 309 of the Income Tax ( Earnings and Pensions) Act 2003 ( ITEPA 2003) provides that, save for earnings, no charge to income tax on employment income arises by reason of a redundancy payment or an approved contractual payment, except to the extent that Chapter 3 of Part 6 (payments and benefits on termination of employment, etc) applies......
Redundancy is a potentially fair reason for dismissal under section 98(2) of the Employment Rights Act 1996 ( ERA 1996). That said, as with other potentially fair grounds, whether a redundancy dismissal is fair is judged by applying the test of whether an employer’s decision to dismiss for that reason falls within the range of reasonable responses of a reasonable employer in the particular circumstances and in that line of business. Not following a fair process when dismissing an employee by reason of redundancy will ordinarily render the dismissal unfair. If an employer proposes to dismiss as redundant 20 or more employees at a single establishment within any period of 90 days or fewer, there is also a statutory duty to consult collectively (see Practice Notes: Collective redundancy—the triggers for the statutory consultation obligations and Collective...
This Practice Note is based on an original work by Ben Sheldrick of Magrath Sheldrick LLP. Running equitable recruitment procedures helps employers curb the chance of discrimination claims succeeding against them. No statute or guidance stops a business selecting the strongest candidate for the role; however, discriminating against an applicant at any point in the hiring journey is unlawful. Employers should remember that each candidate deserves fair treatment at every step of the process. Matters of immigration and employment law that concern illegal working ought to be handled in tandem at all stages of the employment relationship, from hiring through to dismissal. Accordingly, employers must ensure HR paperwork, policies and procedures address these points from the beginning. Whether an organisation relies on a specialist personnel or HR team, or delegates hiring duties to line managers and supervisors, everyone involved in...
This Practice Note explores the legal and practical questions that can arise when an employer (called in this note the 'new employer') seeks to hire an individual or, in a team move scenario, a group of individuals, from a competitor employer (described in this note as the 'former employer' or 'current employer'). It considers how to minimise the potential risk of legal liability for economic torts, including: inducing a breach of contract conspiracy (by unlawful and lawful means) unlawful interference with business as well as other protective action. It sets out what action to take where the employee is in breach. Privilege, including common interest privilege, is assessed in this note. Litigation and settlement strategy is addressed as well. The legal framework In employee competition disputes, the basis of litigation will be the express and implied terms of the employment contract between the...
This Practice Note This Practice Note sets out the particular rights granted to an independent trade union once an employer has recognised it for the purpose of collective bargaining, such as (but not limited to): the entitlement to employer disclosure of information for collective bargaining the right for union officials, learning representatives of the union and other union members to take time away from work for trade union duties and/or activities the right to be consulted in respect of collective redundancies rights to information and consultation in connection with the transfer of undertakings the right to information and consultation on health and safety matters information and consultation rights relating to pension schemes rights in relation to training This Practice Note explores in greater detail the entitlement to disclosure of information for collective bargaining and the rights...
This Practice Note highlights links to key precedents in Lexis+UK Employment Practical Guidance on employment settlement agreements (previously called compromise agreements). It covers the calculation of post-employment notice pay ( PENP), letters of advice, Acas-conciliated ( COT3) settlements, two-stage settlement (re-affirmation), and additional clauses for settlement agreements. Settlement agreements and post-employment notice pay ( PENP) calculation See: Settlement agreement (employment) Settlement agreement (employment) (short form) Settlement agreement (employment) (short form, Scotland) Compromise agreement (employment) (short form, Northern Ireland) Settlement agreement (employment)—indicative tax treatment and post-employment notice pay ( PENP) calculation Letters of advice See: Letter—advice to employer client regarding offer to ......
ARCHIVED: This Practice Note is archived, not maintained, and provided solely for contextual reference. From 31 March 2017 to 31 March 2022, designated public sector organisations—among them those in England with 250 or more employees—were subject to the Public Sector Apprenticeship Targets Regulations 2017 (the 2017 Regulations), SI 2017/513. Across the relevant target period, they were expected to achieve an annual average whereby at least 2.3% of their workforce began as new apprentices. This Practice Note covers: the public sector bodies required to have regard to the target—see To whom the duty applied, below the target for bodies within scope of the 2017 Regulations, and which individuals counted towards the headcount used to measure it—see The target, below the data to be published and/or supplied to the Department for Education ( Df E)—see Reporting requirements, below the position for periods beginning on and after 1 April 2022—see Public sector...
Practice Note—time off for public duties This Practice Note explains the entitlement to take time away from work for public duties, as set out in section 50 of the Employment Rights Act 1996 ( ERA 1996). It addresses who is eligible, the extent of the time off, whether payment is due, and the remedies available if time off is refused and in related dismissal cases. Employees benefit from a number of statutory rights to be absent from work. The permitted length of leave, and whether employers must pay for that absence, varies according to the particular category of time off requested. Under the ERA 1996, an employee is entitled to a reasonable amount of unpaid time off during working hours to undertake one of a defined set of public duties. For a sample policy that grants time away for public duties, see Precedent:...
The framework of the people with significant control ( PSC) regime Introduced on 6 April 2016, the people with significant control ( PSC) regime is grounded in Part 21A of the Companies Act 2006 ( CA 2006), as updated by sections 81–83 and Schedule 3 of the Small Business, Enterprise and Employment Act 2015 ( SBEEA 2015), and by sections 44, 51 and Schedule 2 of the Economic Crime and Transparency Act 2023 ( ECCTA 2023). It was devised to curb opacity in corporate ownership, where records often noted only the legal, not the beneficial, holder of shares. The PSC register provides accurate, up-to-date details on who ultimately owns or controls companies and other entities, and this information is publicly accessible on the central registry at Companies House. It informs investors weighing an investment and assists law enforcement during money laundering...
This Practice Note This Practice Note scrutinises claims for protective awards arising where an employer fails to meet its collective redundancy consultation duties under sections 188 and 188A of the Trade Union and Labour Relations ( Consolidation) Act 1992 ( TULR( C) A 1992). It addresses who may bring proceedings, the evidential burden, the geographical scope of a claim, and available defences and remedies. It explains which employees fall within a protective award, the quantum of any award, varying the amount for non-compliance with a relevant Code of Practice, the duration of the protected period, a week’s pay for calculation purposes, and liability for the award after a TUPE transfer or insolvency of the employer. It also covers claims by individual employees to enforce an unpaid award, applicable time limits, and particular issues when compromising protective award claims. The statutory...
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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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