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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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This case tracker brings together key employment judgments issued in 2018. For live, noteworthy proceedings, see Practice Note: Case tracker— Employment. Where available, links to Employment news analysis are provided. The Lexis®+ UK Employment team welcomes suggestions for further cases of interest to subscribers; please use the ‘ Contact Us’ button above and the Lexis®Ask facility to share details. STATUS AND WORKER CATEGORIES Case: Kowal v The Doctors Laboratory Citations: 2200444/2017, 2200445/2017, 2200446/2017, 2200447/2017, 2200448/2017 Topic: Employment status — whether a courier is an employee for unfair dismissal and discrimination. Position: The respondent accepted the claimants are workers, not self‑employed, and, on settlement, agreed some claimants were employees (see LNB News 09/02/2018 109 ‘ Gig economy: Settlement sees blood couriers get full employment rights’). Court: Central London Employment Tribunal History: Claims filed on 7 March 2017; listed for a...
This Practice Note examines the statutory definitions set out in the Equality Act 2010 ( Eq A 2010) for the protected characteristics of age, gender reassignment, race and sex. Protected characteristics Under Eq A 2010, individuals are shielded from discrimination connected to certain listed characteristics that a person may possess. Certain safeguards apply solely to one such characteristic in particular. Others extend identical protection across all the listed characteristics, which are collectively known as 'the protected characteristics'......
A UK limited liability partnership ( LLP) For company law purposes, a UK limited liability partnership ( LLP) is a corporate body, but for tax it is generally treated like a partnership—that is, it is tax transparent. Where an LLP carries on a trade, profession or business with a view to profit, profits and gains are ordinarily taxed on the members, not on the LLP itself. Transparency also means members are taxed on the LLP’s profits and gains as they arise, whether or not any amounts have been distributed. In some cases this treatment may not apply, or can be lost; see When is an LLP not tax transparent? below. Members are taxed on their shares of the LLP’s profits in the same way as partners in other forms of partnership; see Practice Note: Taxation of general...
This Practice Note explores how to identify the governing legal system for a contract of employment or an employment relationship. It reflects the consequences of Brexit, the close of the Withdrawal Agreement’s implementation period at 11pm on 31 December 2020, and the Retained EU Law ( Revocation and Reform) Act 2023 ( REUL( RR) A 2023) for this field. For further details, see: Brexit impact, below. Initial considerations Where a dispute or claim involves an employee working wholly or partly abroad and/or engaged by a foreign employer, two preliminary questions arise: what rights does the employee have? in which forum should any subsequent litigation be decided? In addressing these, three principal issues arise: applicable law, namely which legal system governs the employment contract under review? international jurisdiction, that is, which courts and/or tribunals should determine the case?......
Appeals to the Court of Appeal From the Employment Appeal Tribunal ( EAT) in England and Wales, the usual channel for challenging decisions is to the Court of Appeal. Challenges may proceed only on a point of law, and with permission—granted by either the EAT or the Court of Appeal......
This Practice Note This Practice Note sets out a summary of the principal working time requirements applying to drivers and operators of goods and passenger vehicles, covering daily driving and duty limits alongside break and rest obligations. It addresses the assimilated drivers’ hours regime (formerly described as the EU drivers’ hours rules or EU retained drivers’ hours rules), the European Agreement Concerning the Work of Crews of Vehicles Engaged in International Road Transport ( AETR) rules, and the domestic drivers’ framework, including the Road Transport ( Working Time) Regulations 2005. In particular, it explains when each regime applies, the obligations under each, any exemptions, and the relevant provisions of the Working Time Regulations 1998 ( WTR 1998) in each instance. The Note also highlights the key provisions concerning self‑employed drivers and the remedies available to a worker for any breach of their rights under WTR 1998 and the...
Freezing orders Freezing orders were once referred to as Mareva injunctions, taking their name from the claimant in one of the earliest decisions to grant such relief. A freezing order is a type of injunction restraining a defendant from moving assets out of the jurisdiction (ie England and Wales) and/or from dealing with assets, whether located domestically or, in appropriate cases, abroad. The rationale for granting a freezing injunction is to preserve the defendant’s property so that, should the claimant secure judgment against the defendant, those assets remain available to satisfy any award of damages and costs. A freezing order may therefore be suitable where there is reliable evidence that a defendant intends to dissipate assets to frustrate a claim for damages against him. In an employee competition context, such relief is unlikely to be pursued unless one or more defendants are accused of...
The fluency duty ARCHIVED: This archived Practice Note examines the public sector ‘fluency duty’, meaning the obligation for staff in customer‑facing positions within public authorities to use the English language fluently (or in Wales, both English and Welsh). From 21 November 2016 a statutory duty applies to workers in such roles to be fluent in English (and, in Wales, in English and Welsh). The policy was introduced on the basis that clear fluency and understanding in all dealings with the public would deliver more efficient and effective public services. For these purposes, fluency requires the ability to speak English (and/or Welsh) with sufficient command to perform the role effectively. A draft statutory Code of Practice to support employers in meeting the fluency duty appeared in October 2016, followed by an updated version in November 2016. The revised Code took effect on 22 December 2016, with a Welsh...
This Practice Note sets out the deadlines governing when equal pay (equality of terms) claims must be lodged in the employment tribunal, and explains the effect of the qualifying period. The qualifying period Proceedings concerning: a complaint about breach of an equality clause or rule an application seeking a declaration on the effect of an equality clause or rule may not be commenced in an employment tribunal after the qualifying period has ended. Once that window has closed, the tribunal will not accept such proceedings. Note that a breach of an equality clause or rule can also be pursued as a breach of contract claim in the High Court or County Court, in which case the longer six-year contractual limitation applies. For further detail, see Civil court claims below. Different time rules apply in the civil courts. In tribunal claims, the qualifying period is subject to any...
Employment-related loans The benefits code in ITEPA 2003, Part 3 contains tailored provisions for ‘employment-related loans’ which, in some circumstances, give rise to income tax and National Insurance contributions ( NICs) for directors and employees, and employer’s NICs for employers, in respect of such borrowing. This Practice Note explains what amounts to an employment-related loan for the purposes of the benefits code. The concept is broadly framed and is treated as covering loans made by the employer and by other associated persons. Lending by prospective employers also falls within the definition. As with any other form of employment reward, where a third party rather than the employer provides the loan, it is prudent to consider whether the disguised remuneration rules in ITEPA 2003, Part 7A apply, as those provisions take precedence over most other employment income charging rules (including the benefits code). For further...
The Employment Tribunal Procedure Rules 2024 ( ET Rules 2024), SI 2024/1155 The ET Rules 2024 provide the overarching scheme for how employment tribunal hearings are conducted, covering tribunal make-up, case management powers, hearing processes, evidence, representation, the use of technology, decision-making, and the legal force and finality of judgments and orders. Under these Rules, every hearing falls into one of two categories: a preliminary hearing (see Practice Note: Preliminary hearings in the employment tribunal), or a final hearing (see Practice Notes: Preparation for employment tribunal final hearing and Procedure at employment tribunal final hearing) The matters that each type of hearing can address are not the same, and different provisions of the ET Rules 2024 apply to their procedures. These points are considered separately in the Practice Notes referenced above. Some provisions apply across both preliminary and final hearings, and other...
ARCHIVED: This Practice Note is archived, is not being updated, and is supplied for background reference only. UPDATE (23/3/21): On 22 March 2021, the Department of Health and Social Care announced, among other changes, that 12 provisions will be removed from the Coronavirus Act 2020 ( CA 2020) following its one-year review. These include sections 8 and 9 of the CA 2020 on emergency volunteering leave, which have not been commenced. See: LNB News 23/03/2021 40. This Practice Note outlines the proposals in the Coronavirus Act 2020 ( Act) for emergency volunteering leave ( EVL), a temporary statutory right to unpaid leave for employees and workers who wish to volunteer in the health and social care sectors during the coronavirus ( COVID-19) outbreak. The relevant provisions of the Act are not yet in effect, as the necessary commencement regulations have not been made. A...
This Practice Note sets out the available resources on protections and liabilities arising from actions and omissions that amount to disability discrimination, or other forms of prohibited conduct linked to disability. The level of detail here is intentionally light, as its main function is to signpost subscribers to the comprehensive materials contained in the many further Practice Notes that examine each aspect in full. Its role is to direct readers to linked materials covering each topic in depth. Accordingly, treat this Practice Note as a starting point for research; complete information is located elsewhere via the links below. The characteristics protected The Equality Act 2010 ( Eq A 2010) guards against discrimination and other proscribed conduct relating to certain listed characteristics that people may have. Certain protections apply solely to one such characteristic, while others operate uniformly across them all,...
Practice Note: bonus plans for employees and directors This Practice Note explores how bonus arrangements operate for employees and directors. It considers the two principal forms of scheme: discretionary and contractual. It looks closely at discretionary awards, covering eligibility, the exercise of discretion, limitations and expectations. The Note also addresses tax aspects of bonus plans and what follows when they are ended. It sets out points relevant to scheme design, drafting issues and regulatory matters, including compliance with the UK Corporate Governance Code. Finally, it considers how pregnancy or maternity leave, part-time or fixed-term status, long‑term sickness and linked discrimination concerns affect bonus schemes and payments, available remedies, and the routes for bringing bonus claims in the employment tribunal or the court. Bonuses can strongly motivate and help retain staff while enabling employers to manage wage costs. In some sectors and...
ARCHIVED: This Practice Note is archived and no longer maintained or updated. After the government published its COVID-19 Response: Living with COVID-19, which ultimately removed the remaining domestic coronavirus ( COVID-19) legal restrictions in England from 24 February 2022, the ICO released a brief form of guidance on data protection and COVID-19, replacing the earlier, more specific guidance. See: LNB News 28/03/2022 91. This Practice Note reviews the position under the ICO’s former, more detailed guidance on testing and vaccination, which was withdrawn in full from 28 March 2022. It addresses the issues that emerged in the employment setting and workplace concerning Coronavirus ( COVID-19) testing and vaccination, and verification of COVID status, namely the NHS COVID Pass displaying a person’s relevant vaccination information or test outcomes. For sample policies relating to the...
This Practice Note considers the employment law matters that may arise concerning sabbaticals and career breaks. It also cites decisions of the Court of Justice of the European Union ( CJEU). For guidance on whether judgments of the CJEU are binding on UK courts, refer to Practice Note: Assimilated law— Assimilated case law. What is a career break or sabbatical? The expressions 'career break' and 'sabbatical' lack a specific legal definition, and the chosen description of the break does not ultimately decide its legal character in any given context......
This Practice Note This Practice Note sets out why employers include a payment in lieu of notice ( PILON) clause and how operating a PILON affects the employee's notice period and the termination date. It distinguishes between contractual and non-contractual PILONs, and considers PILONs in the contexts of immediate termination, breach of contract, wrongful dismissal and post-termination restrictions. The discussion of contractual PILONs also addresses mitigation, notification requirements and gross misconduct. Practical drafting guidance is provided to enhance employer flexibility when combining a PILON with other termination arrangements, such as garden leave, and regarding the timing, calculation and payment of PILONs. The Note also outlines the tax treatment of PILONs and flags issues to bear in mind for payments to directors, including the requirements of the UK Corporate Governance Code. It confirms that the right to notice is a right for the employee to remain in...
This Practice Note looks at principal procedural questions that can emerge before the High Court when dealing with cross-border employment litigation as they arise in practice... Brexit impact From exit day, 31 January 2020, the UK stopped being an EU Member State. However, under the transitional arrangements provided for by the Withdrawal Agreement, an implementation period ( IP) ran until 31 December 2020, referred to as ‘ IP completion day’. During that time, for many purposes the EU continued to treat the UK as if it were a Member State, notwithstanding its changed status... Although the UK no longer took part in the EU’s political institutions and governance structures, it remained bound to adhere to its obligations under EU law—including treaties, legislation, principles and international agreements—and was required to submit to the continuing jurisdiction of the Court of Justice of the European Union ( CJEU or ECJ). For...
This Practice Note considers the statutory right to be accompanied under section 10 of the Employment Relations Act 1999 ( ERA 1999). This note outlines the statutory entitlement to be accompanied and explains how and when it operates. It addresses: Who holds the right and the situations in which it applies Disciplinary hearings, grievance hearings, and meetings concerning flexible working requests Eligible companions (a work colleague or a trade union official) What constitutes a reasonable request to be accompanied Considerations for disabled workers The right to a fair trial under Article 6 ECHR Legal representation (that is, by a lawyer) The companion’s role, time off for companions, and postponement of hearings The Acas Code of Practice on Disciplinary and Grievance Procedures Any worker who is required or invited by their employer to attend a disciplinary or grievance hearing, and who makes a reasonable request, has the right to be accompanied at that hearing. For a...
This Practice Note considers equal pay audits, under the Equality Act 2010 ( Eq A 2010) provisions providing equality of pay An equal pay audit is a mechanism employers use to spot possible workplace discrimination arising from unequal pay for equal work. Some employers choose to conduct them on a voluntary basis. Carrying one out can enable an employer to: demonstrate its commitment to achieving and promoting equal pay compare the pay of protected groups who are performing equal work investigate the cause of any gaps identified by reference to a protected characteristic (most commonly gender) identify steps to close any gaps identified that cannot be legally justified use the findings and action points identified as a risk assessment for pay structures reduce potential equal pay breaches going forward Most employers do,...
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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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