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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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The Employment Tribunal Procedure Rules 2024 ( ET Rules 2024), SI 2024/1155, categorise every hearing as either: a preliminary hearing (the subject of this practice note) a final hearing (see Practice Notes: Preparation for employment tribunal final hearing and Procedure at employment tribunal final hearing) What each type of hearing can address differs, and so do the ET Rules 2024 that set out how each proceeds. Those matters are covered in this Practice Note and, for final hearings, in the two Practice Notes cited above. Certain provisions apply to both preliminary and final hearings, and further procedural points arise in each. Refer to Practice Note: Conduct of employment tribunal hearings—general for these aspects of tribunal procedure. A case may involve more than one preliminary hearing. At a preliminary hearing, the tribunal can direct that it is to be treated as the final...
This Practice Note explores the notion of immunity from jurisdiction. It surveys state immunity, diplomatic immunity and immunity in judicial proceedings. It reviews the overall scheme of state immunity, the Benkharbouche judgment and the State Immunity Act 1978 ( Remedial) Order 2023, SI 2023/112; waiver of state immunity; state immunity in claims involving administrative and technical personnel; state immunity in cases concerning personal and/or psychiatric harm; state immunity in claims by members of foreign armed forces in the United Kingdom; and state immunity in proceedings against diplomatic missions. In relation to diplomatic immunity it sets out the general framework and the employment of migrant domestic workers by foreign diplomats. Finally, this Practice Note addresses judicial proceedings immunity (also referred to as immunity from suit). State immunity: the general framework The purpose of state immunity is to ensure that one state’s official and...
This Practice Note outlines the situations in which: an employment tribunal can include interest as a general component of the sum granted in respect of the claim (see: Interest as a part of the award below) interest accrues on outstanding employment tribunal awards, ie for delayed payment (see: Interest on unpaid employment tribunal awards (all claim types) below) Interest as a part of the award In contrast with the High Court and the County Court, employment tribunals generally do not possess power to add an element of interest when calculating compensation, regardless of length of time from the date the party sustained the loss or damage to the date any financial award is made......
Practice Note This Practice Note explores the various formats an employment tribunal hearing might take, such as in-person, entirely remote, or mixed-mode (commonly called a hybrid hearing). It summarises the Presidential Guidance on remote and face-to-face hearings and the Employment Tribunal Presidents’ Road Map. It explains the usual default for different categories of hearing, how and when the format is determined, and the factors the Tribunal will weigh. Under Rule 46 of the Employment Tribunal Procedure Rules 2024 (the ET Rules 2024), a hearing can proceed wholly or partly via electronic means (including telephone) where the Tribunal considers it just and equitable, provided all attendees can hear what the Tribunal hears and, so far as practicable, see any witness as seen by the Tribunal. Historically, employment tribunals conducted almost all hearings in person at a hearing centre (that is, with everyone present), while some case...
This Practice Note sets out how the damages-based agreement ( DBA) framework functions in the context of employment cases. Separate provisions govern DBAs in wider civil litigation and in personal injury matters, and those areas fall outside the scope of this Practice Note. For additional assistance on those topics, refer to the Practice Notes: Damages-based agreements ( DBAs) and Damages-based agreements—personal injury and clinical negligence. For a general overview of litigation funding, see Funding arrangements—overview. The legal context Historically, a solicitor having a financial stake in the result of a client’s contentious matter was widely regarded as objectionable: to provide unbiased and proper advice, the solicitor was expected to remain disinterested and to receive the same remuneration whether the case succeeded or failed. Any bargain that turned on future events (for example, a fee contingent upon the outcome, or a contingency fee...
This Practice Note sets out information on yearly Employment Tribunal ( ET) and Employment Appeal Tribunal ( EAT) statistics released by the Ministry of Justice ( MOJ). It also provides links to quarterly ET statistical reports......
This table offers a convenient summary of the statutory payment rates (e.g. SMP)...
Practice Note This Practice Note is by Anne Redston, Barrister. The views expressed are her own; she is not authorised to represent the Tribunals Service or judiciary. This Practice Note highlights the principal distinctions between employment and self-employment. It reviews the timing of payment for income tax, National Insurance contributions ( NICs), expenses, statutory payments, leave entitlements and, briefly, employment rights. It does not address those operating through agencies (for which, see Practice Notes: Onshore employment intermediaries—income tax provisions, Onshore employment intermediaries—key practical considerations and Offshore employment intermediaries—income tax provisions and key practical considerations). From an individual’s standpoint, employment status is significant, as it determines the income tax and NICs charged on earnings, together with the statutory rights due to employees. From an engager’s standpoint, incorrect categorisation may result in PAYE and NICs assessments, as well as claims for employment rights and/or...
Settlement (employment)—overview In many employment disputes, the parties are inclined to avoid the expense, uncertainty and delay of issuing or defending an employment tribunal claim or, if proceedings are already under way, taking the matter to a full hearing, and may therefore prefer to settle the dispute. Talks aimed at settlement can commence as soon as the issue arises, before any claim or response is filed, or at any stage of the tribunal process, including any interval between a liability decision and the determination of remedy. For further general information, see: Settlement (employment)—overview. If terms are agreed, how the deal is documented may depend on: the nature of the claims or potential claims being resolved whether or not a claim has been submitted to the employment tribunal The two primary ways to conclude existing or potential employment tribunal claims are a settlement agreement (formerly known as a...
This practice note explores the distinctive position of individuals serving in the reserve forces, and the corresponding rights and responsibilities that employers owe to them. What is a military reservist? There are two principal categories of reservist. Members of the reserve forces can be called upon to support the regular forces when needed and perform the same duties as regular personnel: Volunteer reservists: civilians who join any of the four volunteer reserve forces ( VRF)—the Royal Naval Reserve, the Royal Marines Reserve, the Army Reserve (formerly the Territorial Army), and the Royal Auxiliary Air Force. Reservists serve an initial three-year term and must re-engage if they wish to continue in the VRF Ex-regular reservists: former members of the regular forces who are transferred to, or enlisted or re-engaged in, the ex-regular reserve forces, namely the Royal Fleet Reserve, the Regular Reserve and the Air Force...
FORTHCOMING CHANGE : From 6 April 2020, the Employment Rights ( Miscellaneous Amendments) Regulations 2019, SI 2019/731, broaden the entitlement to a written statement of employment particulars so that it covers every category of ‘worker’, not only ‘employees’. Taking effect on the same date, the Employment Rights ( Employment Particulars and Paid Annual Leave) ( Amendment) Regulations 2018, SI 2018/1378, convert this into a day one entitlement that applies when an individual begins work and stipulate that additional details must appear in the statement, including the specific days of the week to be worked (and how these may vary in practice), the terms and conditions governing any paid leave, particulars of any other benefits, and any probationary period and training requirements. For further detail, see our reports: LNB News 18/12/2018 123 and LNB News 19/12/2018 122. See also Practice Note: Written...
This Practice Note outlines links to principal precedents in Lexis+UK Employment Practical Guidance, covering employment contracts, executive service agreements, and additional appointments, such as non-executive positions. Offer of employment See: Letter—offer letter for an employee Employment contracts See: Employment contract—basic version Employment contract for senior......
This Practice Note explores the nature of pay, covering the employer’s obligation to provide wages or salary, the work/wages bargain, and the impact of sickness, unwillingness to work and other reasons for absence. It also considers how wage levels are regulated and sets out an employee’s right to an itemised pay statement, together with remedies where wages are not paid. Interaction of common law and statutory rights At its core, employment is an exchange: pay in return for work. An employer’s duty to give consideration for an individual’s labour and skill, by way of wages or other remuneration, is generally treated as a fundamental term of the contract of employment, as recognised in Ready- Mixed Concrete (see Practice Note: Employee status— Determining whether an individual is an employee: overview). Duty to pay wages There is a duty to pay wages whenever an employee is ready, willing and able to...
This Practice Note This Practice Note explores employment-related claims that can or must be pursued in the High Court or the County Court. It supplies a very high-level outline of the procedures governing such claims in those courts under the Civil Procedure Rules 1998 ( CPR), and directs readers to further materials within the Dispute Resolution module that deliver a complete, in-depth guide to civil procedure. It also addresses: handling overlapping employment tribunal and civil court proceedings; claims concerning post-termination restraints (restrictive covenants); tort-based claims (e.g. personal injury, negligence, and workplace stress); deciding the appropriate court for the claim; judicial review; and civil court time limits, including extensions of time and how the limitation period is determined. It then provides a synopsis of the principal procedural stages of a civil court claim: pre-action requirements including the Practice Direction Pre- Action Conduct and...
Scottish civil courts Scottish civil courts, like those in England and Wales, can and do determine certain employment disputes. Nevertheless, there are substantial differences between the civil court systems in Scotland and in England and Wales that practitioners must appreciate. This Practice Note sets out an overview of: the most common orders sought by employment lawyers in Scottish civil courts the structure of the Scottish civil court system the jurisdiction and principal features of each relevant court rights of audience rules of procedure important points concerning: breach of contract claims in Scotland injunctive (interlocutory) relief in Scotland dawn raids in Scotland industrial relations disputes in Scotland equality of terms claims in...
This Practice Note This Practice Note offers an overview of employment law as administered by employment tribunals and the courts in Scotland. Specifically, it examines: the degree to which statutory employment legislation enacted by the UK Parliament operates in Scotland in the same way as in England and Wales, and the parallels and distinctions between contract law principles applied in Scotland and those applied in England and Wales The roles of the Scottish employment tribunals and the EAT in Scottish matters are subject to a ‘qualified transfer’ to Scotland, meaning an Order in Council is required before responsibility can pass to the Scottish Parliament. The Scottish Government consulted on a draft Order in 2016. The current position is that the Scottish Government awaits a draft Order in Council from Westminster. There is, at present, no operative date for any transfer of functions....
This Practice Note outlines the principal aspects of Assimilated Regulation ( EU) 2016/679, the UK General Data Protection Regulation ( UK GDPR) and the Data Protection Act 2018 ( DPA 2018), drawing out issues of particular interest to employment lawyers and directing readers to more in‑depth guidance and other supporting materials. It reflects the provisions of the Data ( Use and Access) Act 2025 ( DUAA 2025) that are in force as at 5 February 2026 (see Practice Note: Data ( Use and Access) Act 2025—employment implications). Revised guidance from the Information Commissioner’s Office ( ICO) is still awaited. Assimilated law refers to EU‑derived legislation that continues to apply after the end of 2023. For further detail, see Practice Note: Assimilated law. This Practice Note also cites case law from the Court of Justice of the European Union ( CJEU). For guidance on...
This Practice Note considers the various lawful and specific conditions for processing personal data and special category data in the employment context, under Assimilated Regulation ( EU) 2016/679, UK General Data Protection Regulation ( UK GDPR) and Data Protection Act 2018 ( DPA 2018). It also reflects provisions in the Data ( Use and Access) Act 2025 ( DUAA 2025), effective 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 still awaited currently in this area. For broader guidance on workplace data protection matters, see Practice Note: The UK GDPR and DPA 2018: key data protection issues for employment lawyers. Taken together, Assimilated Regulation ( EU) 2016/679, UK GDPR and the DPA 2018 constitute the UK GDPR regime. ‘ Assimilated law’ describes EU-derived...
Practice Note This Practice Note outlines the nature of commission arrangements and common methods of calculation. It reviews scheme structures, the need to address written particulars of employment and compliance with the national minimum wage, and whether a scheme is contractual or discretionary. It also considers employees’ rights to commission during employment, confirms that the Unfair Contract Terms Act 1977 ( UCTA 1977) does not apply, and looks at termination rights and the claims an employee might bring. The Note describes the burden of proof in discretion-based disputes, highlights other potential causes of action, and points readers to materials on the taxation of commission. Many employers—especially those with staff in sales—use commission schemes. Under these arrangements, some or all of an employee’s remuneration is paid as commission rather than basic salary. Commission is generally contingent on sales performance: the greater the sales achieved, the higher the...
STOP PRESS: The Data ( Use and Access) Act 2025 ( Commencement No 6 and Transitional and Saving Provisions) Regulations 2026, SI 2026/82, activate the remaining provisions of the Data ( Use and Access) Act 2025 ( DUAA 2025). Provisions covering subject access requests, legitimate interests, purpose limitation, automated decision-making, international transfers and enforcement apply from 5 February 2026, with those on penalty notices and complaints commencing on 19 June 2026. For more detail, see Practice Note: Data ( Use and Access) Act 2025—employment implications. That Practice Note will be updated shortly to reflect these changes. This ‘ How to’ guide identifies the key issues to address when providing corporate support as an employment lawyer, and signposts the available materials. It sets out the core aspects of employment corporate support and then looks at employment due diligence, advising on how the Transfer of...
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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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