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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
This Practice Note This Practice Note examines how data protection rules in Assimilated Regulation ( EU) 2016/679, the UK General Data Protection Regulation ( UK GDPR) and the Data Protection Act 2018 ( DPA 2018) affect an employer’s scope to ask about criminal records or conduct DBS checks on staff or applicants. It also reflects the Data ( Use and Access) Act 2025 ( DUAA 2025) (see Practice Note: Data ( Use and Access) Act 2025—employment implications). Employers may seek to know if a candidate has a criminal history because: it may indicate character and suitability for the role, or regulators may demand such information Details can be obtained by questioning the candidate or by using the Disclosure and Barring Service ( DBS). Employers are generally not entitled to complete disclosure of every past conviction or caution. Under the...
THIS PRACTICE NOTE APPLIES TO ALL PRIVATE SECTOR PENSION SCHEMES Business sales (sometimes called asset sales) involve a seller disposing of part, or all, of its tangible business to a buyer. The buyer then assumes ownership of the contracts and assets set out expressly in the business sale agreement. Those contracts will typically include, for example, commercial agreements and the employment contracts for some, or all, of the seller’s staff (employees transfer by law), together with any plant, machinery, property, goodwill, and similar items. This Practice Note should be read alongside the following Practice Notes: Pension issues on a business sale—acting for the buyer Pension issues on a business sale—acting for the seller TUPE—what pension benefits should the transferee provide? The purpose of due diligence Due diligence is the process by which a buyer obtains information about the seller's business and the accompanying liabilities. Lawyers acting for the buyer are...
THIS PRACTICE NOTE APPLIES TO OCCUPATIONAL AND PERSONAL PENSION SCHEMES The nature of an outsourcing Outsourcing arises where an organisation contracts with a third party to assume responsibility for delivering services that its own staff presently perform under the organisation’s direction. In almost all cases, employees’ contracts of employment move automatically to the service provider as part of the arrangement. A common illustration is a company (the Customer) handing over its IT function to a specialist firm (the Supplier) under an outsourcing deal. In that scenario, the Supplier undertakes to supply IT services to the Customer, with the Customer’s current IT team transferring to the Supplier. The automatic movement of employment can give rise to pension issues and related matters. This is pertinent on a first-generation outsourcing and when the service provider changes during the arrangement. Pension issues may emerge on...
Practice Note: IR35—introduction, developments and key difficulties As outlined in Practice Note: IR35—introduction, developments and key difficulties, the IR35 framework consists of two principal aspects. This Practice Note sets out the aspect of IR35 that applies where: from 6 April 2017, a public authority, and from 6 April 2021, a private sector entity (other than one that is ‘small’ or does not have a ‘ UK connection’) engages a worker through an intermediary such as a personal service company ( PSC). This aspect is described as the ‘large and public client off-payroll regime’ throughout this Practice Note and across all items in this subtopic. The other aspect of IR35 applies in every other situation, for instance where the contracting end client is a small private sector entity or lacks a UK connection. That regime is termed the ‘small client...
This Practice Note This Practice Note explores employment law considerations for interns undertaking work experience. It covers the meaning of an intern under the Common Best Practice Code for High Quality hips, the potential status of an intern (employee, worker or volunteer) and the resulting employment protections, alongside recruitment, the national minimum wage, data protection, and health and safety. There is no legal definition of an internship, but the Common Best Practice Code for High Quality hips ( Code), produced by the Gateways to the Professions Collaborative Forum in association with the relevant government department and others (part of the GOV. UK guidance on providing quality internships), describes it as a setting where an individual works to gain relevant professional experience before starting a career. In short, it is work experience linked to a person’s chosen career. The idea is that...
Civil and criminal penalties for employing illegal workers A framework of civil and criminal penalties for employers who engage illegal workers applies to employment beginning on 29 February 2008, under the Immigration, Asylum and Nationality Act 2006 ( IANA 2006). An individual is an illegal worker if they are 16 or over, require leave to enter or remain under the Immigration Act 1971, and any of the following applies: they have not been granted leave to enter or remain in the UK, or their leave to enter or remain is invalid or has ended for any reason, or their leave to enter or remain carries a condition that prevents them from taking employment For the purposes of illegal working rules, employment covers any working relationship under a contract of service or apprenticeship, whether express or implied, and whether oral or...
ARCHIVED: This retired Practice Note reviews Acas’s advice on handling disciplinary and grievance processes amid the coronavirus ( COVID-19) pandemic, and the modifications it indicates employers might be required to adopt to apply the Acas Code of Practice on Disciplinary and Grievance Procedures (the Acas Code) so that any process remains safe, fair and reasonable. It is no longer maintained and is provided solely for background reference. The current Information Commissioner’s Office ( ICO) Employment Practices Code and its supplementary guidance have not yet been revised to reflect Assimilated Regulation ( EU) 2016/679, the UK General Data Protection Regulation ( UK GDPR) or the Data Protection Act 2018. For details of the ICO’s proposals for an Employment Practices Hub, and the consultations opened to date on draft guidance, see Practice Note: The UK GDPR and DPA 2018: key data protection issues for...
Company directors oversee the everyday running of the company. They make decisions on the company’s behalf so it can continue operating, typically covering: securing funding entering contracts buying or leasing premises obtaining stock or equipment recruiting staff For details on directors’ decision-making, and the processes and procedures commonly involved, see the following Practice Notes: Directors’ decision-making—power, authority and duties Directors’ decision-making—convening board meetings Directors’ decision-making—conduct at board meetings Directors’ decision-making—post board meeting formalities Directors’ decision-making—written resolutions and decisions by sole directors Where do the directors’ powers come from? ......
Assimilated law Assimilated law describes retained EU law that continues to apply after the close of 2023. For more detail, see Practice Note: Assimilated law. This Practice Note offers guidance on the rights of data subjects in the employment setting. It reflects the UK GDPR framework, and statutory references are to Assimilated Regulation ( EU) 2016/679, the UK General Data Protection Regulation ( UK GDPR) and the Data Protection Act 2018 ( DPA 2018), unless stated otherwise. It also accounts for provisions of the Data ( Use and Access) Act 2025 ( DUAA 2025) in force as at 5 February 2026 (see Practice Note: Data ( Use and Access) Act 2025—employment implications). Updated guidance from the Information Commissioner’s Office ( ICO) is awaited. For an overview of key themes in the Assimilated Regulation ( EU) 2016/679, UK GDPR and DPA 2018, and for...
This Practice Note explores the legal and practical considerations that may arise when an employee plans to leave their present employment and move across to work for a competitor. It recognises that the competitor might be an existing organisation, or a new venture established by the employee (acting alone, or together with others, for example, colleagues) to carry out the competing activity. For a comprehensive guide to materials relating to employee competition and confidentiality, including post-termination restrictions, see Practice Note: Restrictive covenants in employment—a guide to our materials. Contract of employment and other documents When advising an employee who is considering leaving their current employer for a competitor, the first step is to review the terms of the contract of employment, and to identify the duties and restrictions that apply to the employee. For further information on the different types of...
This Practice Note This Practice Note reviews the timing of statutory collective consultation duties on collective redundancy and what each entails. It clarifies when obligations begin, including the impact of staggering redundancies in groups, and the procedures to follow. It analyses the advance duty to notify the Secretary of State ( DBT) on Form HR1, explains the meaning of ‘at one establishment’, and states when notification must occur. It identifies who counts as an appropriate representative, their statutory rights, and the requirements for election. It defines the scope of the duty to inform, specifying the information to be given and the method of delivery. It explains the purpose of consultation, how it should be conducted, when it should start and how long it should run. It also covers when notice of termination may be given, when termination can take effect, and the ‘special...
Practice Note This Practice Note provides links to the Harvey Quantum awards and recommendations database focused on employment tribunal awards and recommendations. It includes coverage of injury to feelings awards across all discrimination grounds, personal injury, aggravated damages, exemplary damages, uplifts for non-compliance with the Acas Code, and recommendations. The database is designed to help practitioners understand the kinds of considerations and contexts that lead tribunals and courts to make particular awards and recommendations in employment discrimination matters. In turn, it offers guidance on the likely level of compensation clients might receive (or agree in settlement) in the specific circumstances of a case. Illustrative recommendations and the sums granted by employment tribunals and courts for discretionary heads of loss in discrimination claims are included. Heads of loss that typically do not involve such discretion (beyond the period of loss), for example loss of...
This playbook This playbook sets out guidance for drafting and negotiating a settlement agreement used to resolve potential statutory and contractual employment claims arising on a redundancy, before employment ends. It offers a preferred stance and an alternative fallback for the clauses most often debated. It may not, however, capture every point that could surface in a specific negotiation. The template is suitable for lawyers representing the employer and in-house counsel. Users should tailor it to client-specific matters to ensure the client’s position is fully protected, noting that the level of risk flagged may differ by client. It does not contain provisions for situations where the settlement agreement is concluded after employment has already ended. For related settlement agreement materials, see: Settlement (employment)—overview Precedent: Settlement agreement (employment) Precedent: Settlement agreement (employment) (short form) Precedent: Settlement agreement...
Practice Note This Practice Note explains the required format for a claim to the employment tribunal ( ET), together with the necessary steps for lodging or submitting that claim. Claimants are required to file their claim form (called an ET1) with the employment tribunal in line with any relevant practice direction......
This Practice Note outlines how to get ready for a final tribunal hearing, covering directions, bundles, scheduling of hearings, and when liability and remedy are determined together. It also addresses split hearings and the route for admitting secretly made recordings into evidence. Directions In most situations, the tribunal issues directions to the parties about the steps to be taken in advance of the final hearing. This can occur at a preliminary hearing or be provided in writing without a hearing (see Practice Note: Employment tribunal case management). For more detail on the types of directions commonly made, see Practice Note: Preliminary hearings in the employment tribunal— Preliminary hearings relating only to general case management orders. Preparation and exchange of witness statements It is standard for the tribunal to direct the preparation and exchange of witness statements. Several copies of each statement will be needed at the final...
Practice Note This Practice Note explores the employment law framework and the practical matters an employer will need to address when managing pregnancy-related sickness within the workplace. It considers initial points to bear in mind around pregnancy-related sickness or illness; detriment or dismissal because of pregnancy; the use of medical reports under the UK General Data Protection Regulation ( UK GDPR) and the Access to Medical Reports Act 1988 ( AMRA 1988); approaches to persistent, short-term absence, long-term absence and malingerers; time away from work for antenatal appointments; applying the employer’s usual sickness policy and procedure where absence is pregnancy-related; the entitlement to sick pay; pregnancy-related illness triggering the commencement of maternity leave; risk assessments and the obligation to offer suitable alternative work; and suspension on maternity grounds. A pregnant employee may take sickness absence owing to a...
This Practice Note considers how equal pay (equality of terms) applies to women who are pregnant or on ordinary or additional maternity leave ( OML/ AML). It also examines key elements relevant to pregnancy and maternity within equal pay law, including: the implied maternity equality clause, covering its impact and the duration of the protected period the principle that a comparator is unnecessary for pregnancy- and maternity-related equal pay claims how pay rises, bonuses and pension contributions are handled during maternity leave and on returning to work A woman away from work on maternity leave occupies a distinct position that merits particular protection, yet is not comparable to a man who is actually working. Consequently, she is not entitled to full pay during maternity leave, notwithstanding the equal pay principle in the Treaty on the Functioning of the European Union. That said, being on...
This Practice Note outlines the legal framework on discrimination arising from pregnancy, pregnancy‑related illness and maternity under the Equality Act 2010 ( Eq A 2010). It explores the scope of the protected period for these issues, what amounts to unfavourable treatment, potential difficulties with the pregnancy and maternity leave discrimination provisions, associative discrimination claims, the interpretation of ‘because of’ in this setting, how these rules sit alongside equality of terms provisions, the position on non‑contractual payments, and workplace risk assessments for women who are new or expectant mothers. The Note also cites case law of the Court of Justice of the European Union ( CJEU). For guidance on whether CJEU judgments bind UK courts, see Practice Note: Assimilated law— Assimilated case law. Domestic measures implementing the UK’s EU obligations form part of assimilated law. For more detail, see Practice Note:...
STOP PRESS: Following confirmation that the Department for Business and Trade has ‘no plans’ to commence the Workers ( Predictable Terms and Conditions) Act 2023 ( WPTCA 2023) in Autumn 2024 as anticipated, clause 5 of the Employment Rights Bill, introduced on 10 October 2024, would repeal the WPTCA 2023. Clause 7 of the Bill updates Part 8A of the Employment Rights Act 1996, introducing a requirement of ‘reasonableness’ when an employer refuses a flexible working request on one or more statutory grounds, and obliging the employer to explain in its notification to the employee why it considers it reasonable to turn down the application on the cited ground(s). For more information, see: Law360: Labour drops predictable hours legislation to pursue stronger right The Employment Rights Bill and Employment Rights Bill 2024 - views from the sector LNB News...
Practice Note This Practice Note outlines the terms typically found in a limited partnership agreement for partnerships established under the Limited Partnerships Act 1907 ( LPA 1907). It also sets out the default statutory rules that apply where no limited partnership agreement is in place, as well as the provisions commonly included in such agreements. With effect from 6 April 2017, the LPA 1907 was amended by the Legislative Reform ( Private Fund Limited Partnerships) Order 2017, SI 2017/514 ( LRO). A draft of the LRO was issued in January 2017 by HM Treasury, together with an explanatory document. The LRO followed a government consultation that began in July 2015 and concluded in October 2015 on proposed amendments to UK limited partnership legislation to make these structures more effective vehicles for private equity and venture capital investments. The reforms introduced by the LRO apply solely to...
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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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