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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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ARCHIVED: This archived Practice Note is not maintained and is for background information only. UPDATE (5/11/20): The Chancellor of the Exchequer, Rishi Sunak, announced in a statement to the House of Commons on Thursday 5 November 2020 that the Coronavirus Job Retention Scheme ( CJRS) furlough arrangement would be extended. Consequently, the Jobs Retention Bonus ( JRB) will not be paid in February 2021 and the government intends to redeploy a retention incentive at an appropriate point. See the HM Treasury press release: Government extends Furlough to March and increases self-employed support and the HMRC policy paper: Extension of the Coronavirus Job Retention Scheme. For additional details, see Practice Note: Coronavirus Job Retention Scheme (extended version 1 November 2020 to 30 April 2021) [ Archived]. This Practice Note was revised to capture these changes. This Practice Note considers the Coronavirus Job Retention Bonus Scheme (...
Acas (the Advisory, Conciliation and Arbitration Service) Acas is an independent, publicly funded organisation that champions sound employment relations and supports employers and employees to prevent or resolve workplace disputes. Its services include conciliation, mediation and arbitration. Conciliation entails an impartial officer (a conciliator) talking through the disputed matters with both sides in order to help each appreciate the other’s position. The conciliator aims to encourage the parties in dispute to reach an agreement between themselves, thereby removing the need for an employment tribunal hearing. Where conciliation overseen by an officer results in agreement — a COT3 agreement — it constitutes one of the two exceptions to the “contracting out provisions” that apply to most employment protection legislation. Those provisions set a basic principle that any term in an agreement which purports to stop a person bringing, or continuing with, a claim in the...
Mediation Mediation is a type of alternative dispute resolution ( ADR) commonly applied in employment settings to address conflicts. For broader guidance on mediation in employment disputes, see Practice Note: Mediation in employment—introduction. Mediation may occur in numerous situations, both while employment continues and after it has concluded. A useful distinction is between: workplace mediation, and employment mediation Workplace mediation is used where the parties still have an ongoing working relationship when the process begins. The mediator supports the individuals in attempting to resolve issues so they can continue working together. The emphasis is on repairing the relationship rather than determining a legal claim. For more detail, see Practice Note: Workplace mediation. Employment mediation applies where a tribunal claim is being contemplated or has already been filed. The employment relationship may already be over, although that is not essential. The mediator assists the parties in...
This Practice Note explores why post-termination restrictions (restrictive covenants) might be required within contracts of employment, as well as the usual categories commonly adopted in practice. For guidance: on interpreting post-termination restrictions, see Practice Note: Construing post-termination restrictions on whether a post-termination restriction is incorporated into the contract, see Practice Note: Incorporation of post-termination restrictions on assessing the reasonableness of post-termination restrictions, see Practice Note: Post-termination restrictions—reasonableness on leading decisions concerning the enforceability of post-termination restrictions, see Practice Note: Decisions on post-termination restrictions and garden leave in employment contracts The need for post-termination restrictions During employment, including any spell of garden leave directly before termination of employment (see Practice Note: Garden leave and the right to work), an employee remains subject to a range of implied obligations owed to their employer and must observe them...
ARCHIVED This archived Practice Note reviews the Posted Workers Directive, 96/71/ EC ( PWD), set against cross-border, international and jurisdictional considerations and related matters. The PWD no longer applies to individuals posted to the EU from the UK, or posted from the EU to the UK, on or after 1 January 2021. Accordingly, postings between the UK and EU fall outside the PWD from that date. The Practice Note: sets out the effect of Brexit on this subject (see: Brexit impact, below) highlights the matters to assess when posting a worker on or after that date (see: Posting workers from 1 January 2021, below) The remainder of the Practice Note addresses the position before 1 January 2021 and is retained for reference purposes. Brexit impact From exit day (31 January 2020) the UK stopped being an EU Member State but, under the...
This Practice Note outlines retained EU law as it operated in 2021–23, setting out key definitions and concepts with pointers to the relevant provisions of the European Union ( Withdrawal) Act 2018 ( EU( W) A 2018). It further considers the overhaul of retained EU law and its re-labelling as assimilated law from 2024. Wider aspects of the EU( W) A 2018, together with the distinct arrangements and divergences for the UK’s devolved administrations, fall outside the scope of this Practice Note. Evaluation of particular instruments, provisions or rights, and whether they are retained, is likewise excluded. what’s the difference? Both “retained EU law” and “assimilated law” describe the residual body of domestic law that originally stemmed from the UK’s membership of the EU. The labels mark two phases in the domestic legal system’s adjustment to...
This Practice Note aims to clarify areas of uncertainty about employer right to work checks in the UK on European Economic Area ( EEA) nationals and their family members after Brexit. For the purposes of this Note, EEA citizens are taken to mean nationals of the remaining 27 EU Member States (excluding the United Kingdom), also Liechtenstein, Norway and Iceland. Although Switzerland is not within the EEA, it is treated, for the purposes of EU free movement law, as though it were. Background: Brexit and the EU Settlement Scheme Brexit and the EU Settlement Scheme EEA citizens and their family members previously benefitted from EU free movement rights, chiefly given effect in the UK by the Immigration ( European Economic Area) Regulations 2016 (the EEA Regs 2016), SI 2016/1052. In line with the Withdrawal Agreement reached between the EU and the UK, and...
Labour and employment— Portugal— Q& A guide [ Archived, 2021 edition] This Practice Note provides a jurisdiction-specific Q& A on labour and employment in Portugal, released within the Lexology Getting the Deal Through series by Law Business Research (published: October 2021). Authors: Morais Leitão, Galvão Teles, Soares da Silva & Associados— Joana Almeida 1. What are the main statutes and regulations relating to employment? The principal sources are the Labour Code, enacted by Law No. 7/2009 of 12 February 2009, and the Labour Code Regulation, enacted by Law No. 105/2009 of 14 September 2009, both as amended. Targeted rules address specific matters (eg, health and safety at work, workplace accidents, occupational diseases and labour misdemeanours) and particular categories of employment contract (eg, homeworking, sports employment, port or on-board work, showbusiness and domestic service), each governed by dedicated statutes. 2. Is there any law prohibiting...
The tax treatment of payments in lieu of notice ( PILONs) Significant changes to sections 402–404 of the Income Tax ( Earnings and Pensions) Act 2003 ( ITEPA 2003) took effect on 6 April 2018. In essence, every PILON—whether made under an express or implied contractual PILON clause or made without any such provision—is now fully taxable and liable to both employee and employer National Insurance contributions ( NICs). This position is delivered through a requirement for employers to perform a post-employment notice pay ( PENP) calculation. As set out below, that calculation enables employers to determine which portion of a termination payment falls within the tax charge. Consequently, the pre‑2018 distinction between PILONs paid under a contractual PILON clause (previously wholly taxable) and PILONs not paid under a contractual provision (which could access the £30,000 tax exemption and were entirely outside NICs) no longer...
This Practice Note It explores the legal framework governing picketing, the criteria for when it amounts to ‘peaceful’ picketing, the situations in which such activity could attract criminal liability, and matters tied to direct action, protests and demonstrations. Where appropriate and relevant, it draws on the Code of Practice on picketing. It is not a term with exhaustive statutory or other definition......
This Practice Note considers the types of final injunction (or perpetual) injunction in the context of employee competition and confidentiality claims. For broader direction on final injunctions, see Practice Note: Final injunctions. See also Practice Note: Injunctions—guiding principles. Where parties seek to uphold contractual obligations and post-termination restraints, the remedies available are commonly divided into two groups as follows: interim remedies obtainable before the final trial, and remedies awarded after the final trial of the dispute Interim measures are usually temporary injunctions—that is, orders lasting only for a limited period, typically covering the interval from the date the injunction is made up to the trial. For an overview, see Practice Note: Interim injunctions in employee competition claims and confidentiality claims. Although courts now commonly list employee competition disputes for an expedited trial, it is often the position that claims seeking to enforce...
Every employer aims to maximise the contribution of their workforce. Keeping sight of how people are performing is a vital part of that. When expectations fall short, employers must be able to manage performance, giving staff a fair opportunity to improve. Where adequate progress does not materialise, employers should understand how to act proportionately and lawfully, which could, in the end, involve dismissal. Handling any performance improvement procedure fairly is critical so that, if dismissal follows, the employer can properly resist any unfair dismissal claim (see Practice Notes: Dismissing fairly for poor performance and Reason for dismissal—capability) and any possible discrimination claim (see, for example, Practice Notes: Direct discrimination and Indirect discrimination). At common law, there is an implied warranty that an employee is competent to carry out the role for which they were hired. For more detail, see Practice Note: Types of...
THIS PRACTICE NOTE APPLIES IN RELATION TO PRIVATE SECTOR PENSION SCHEMES A business sale agreement commonly features warranties provided by the seller to the buyer. A warranty is the seller’s assurance that a fact is correct; for instance, the seller might confirm that a named pension scheme is the sole arrangement in which the target company participates. Pension warranties may appear alongside provisions on areas such as real estate and tax, or be set out in a standalone pensions schedule attached to the agreement. This Practice Note sets out why pension warranties are needed in business sales, what they typically look like, practical points when advising either buyer or seller, and illustrative examples of pension warranties. Acting for the buyer Ideally, the buyer should carry out a thorough review of the target’s pension arrangements to assess the risks and liabilities associated with the...
Periods of statutory family leave include: Maternity leave — for more details, consult Practice Note: Maternity leave Paternity leave — for more details, consult Practice Note: Paternity leave and pay Adoption leave — for more details, consult Practice Note: Adoption leave Parental leave — for more details, consult Practice Note: Parental leave Shared parental leave — for more details, consult Practice Notes: Shared parental leave (birth) and Shared parental leave (adoption) Parental bereavement leave — for more details, consult Practice Note: Parental bereavement leave and pay Neonatal care leave — for more details, consult Practice Note: Neonatal care leave and pay Carer’s leave — for more details, consult Practice Note: Carer’s leave Protection of pension rights during periods of statutory family leave Statutory provisions safeguard the pension entitlements of members of occupational pension schemes and other...
An indemnity is a contractual responsibility resting on one of the contracting parties (the indemnifier) and owed to the other contracting party (the indemnified party), that responsibility being for the indemnifier to pay, or otherwise recompense, the indemnified party in respect of specified liabilities incurred or assumed by the indemnified party (such liabilities commonly arising after the contract is signed)......
Less favourable treatment and the pro-rata principle Under the Part-time Workers ( Prevention of Less Favourable Treatment) Regulations 2000 ( PTW Regs 2000), SI 2000/1551, part-time workers have protections in relation to certain employment matters: A right not to be treated less favourably than a comparable full-time worker (see Less favourable treatment and the pro-rata principle, below; and Comparable full-time worker, below). A right to request from their employer a written statement setting out the reasons for any less favourable treatment (see The right to a written statement giving reasons for less favourable treatment, below). Protection against victimisation—being subjected to a detriment or dismissal—for exercising or seeking to exercise their rights under the PTW Regs 2000 (see Tribunal claims, below). In some situations, the ability to bring claims under the Equality Act 2010 ( Eq A 2010) for indirect discrimination or equality of terms arising from less...
This Practice Note cites decisions of the Court of Justice of the European Union. For advice on the extent to which EU rulings bind the courts of the United Kingdom, consult Practice Note: Assimilated law — Assimilated case law. The legislative framework Two distinct legislative strands must be assessed when considering part-time workers and discrimination. The first concerns equal treatment as between men and women. Because, historically, women have been more likely than men to work part-time, employment conditions, including pension scheme terms, that treat part-time staff less favourably may amount to discrimination against women. The second concerns measures directed specifically at safeguarding part-time workers. Equal treatment legislation Provisions intended to guarantee equality for men and women in relation to pension schemes have a long history. The current domestic position is contained in section 67 of the Equality Act 2010 ( Eq A 2010), which...
This Practice Note sets out the right of parents of a child (born or adopted) to take 18 weeks’ unpaid parental leave to care for the child before the child’s 18th birthday. It explains: who is eligible; the default statutory scheme where no agreement is in place; notice obligations; rights while on parental leave; the right to return following leave; protection from detriment or dismissal for exercising this right; and remedies for parental leave claims, including where the Acas Disciplinary and Grievance Code has not been observed. By virtue of section 76 of the Employment Rights Act 1996 ( ERA 1996) and regulation 15 of the Maternity and Parental Leave etc Regulations 1999 ( MAPLE 1999), SI 1999/3312, parents of a child—whether birth parents or adopters—are entitled to take up to 18 weeks’ unpaid leave to look after that child at any...
This Practice Note sets out an overview of outsourcing arrangements and maps the principal stages of a standard outsourcing lifecycle, viewed chiefly from the customer’s perspective: Characteristics of outsourcing deals Why organisations outsource The lifecycle of a typical outsourcing deal Analyse requirements Scope project Commercial considerations Technical considerations Regulatory impact Deal structure Offshore/near shore and cloud services Procurement process Selection and contract Delivery and contract management Contract end/renewal Outsourcing is often intricate, yet with a methodical plan and clear objectives it can be directed in a disciplined way. Adopting a structured approach enables customers to set realistic targets, define how performance will be measured, and contract on terms that support the delivery of those aims. Characteristics of outsourcing deals An outsourcing arrangement passes responsibility for providing a service to an external...
Practice Note This Practice Note highlights the principal risks when exiting an outsourcing arrangement, and covers specifying exit services, setting the duration and exit period, duties to co-operate and to supply information for any re-tendering process, treatment of personnel, know-how, intellectual property rights, transfer of assets and contracts, the exit plan and its costs, and steps to take where a contract lacks exit provisions. One constant of any outsourcing deal is that it will finish. Without anticipating failure, outsourcing agreements should be designed to ensure an orderly transition to the next phase following termination (whether for convenience or arising from a default), or upon their scheduled expiry date, so the handover is managed, predictable, and aligned with agreed responsibilities. Articulating the exit process within the outsourcing contract is critical. Moreover, the customer must hold the supplier to its contractual duties to plan for exit during the term so...
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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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