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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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Where a employee may have prospective claims against the employer under the Employment Rights Act 1996 ( ERA 1996) or other employment legislation, or might otherwise pursue a breach of contract claim, the parties can conclude a settlement agreement to terminate the employment on the terms specified in that document (although, on a limited number of occasions under employment law, certain claims cannot be compromised by a settlement agreement). Senior managers/shareholders can likewise execute settlement agreements if they depart when the employing business is sold. For a model settlement agreement (with drafting notes), see Precedents: Settlement agreement (employment) or Settlement agreement (employment) (short form). By agreeing a settlement, the employer gains assurance that the employee will not bring a future claim against the employer. Among other matters, the settlement agreement will address all sums and benefits due, or agreed, to be paid to the...
This Practice Note examines the national minimum wage ( NMW) and the national living wage ( NLW). It also notes the ‘real living wage’, set by the Living Wage Foundation. It explains who qualifies—workers, agency and home workers—and where exclusions apply for training, work experience and trial shifts. It sets out rates (including for apprentices and agricultural workers), pay calculation across the pay reference period, and the effect of living accommodation. It outlines types of hours (salaried, time, output and unmeasured work), night shifts and sleeping at or near work, training time, and travelling to and from work and training. It covers record keeping, underpayment and workers’ claims, plus enforcement by the Fair Work Agency, naming and shaming, criminal offences, Labour Market Enforcement undertakings and orders ( LMEs), protection from detriment, automatic unfair dismissal, and the bar on contracting out. The National Minimum Wage Act 1998 (...
What is a Micklefield clause? It is now typical for employee share schemes to state that, when employment ends (or when an employee gives or is given notice of termination), any outstanding share awards are forfeited and any outstanding share options lapse. It is likewise increasingly standard for these schemes (and at times employment contracts) to include provisions by which the employee agrees to waive any entitlement to compensation for the loss of those awards on termination of employment. Such provisions are commonly called Micklefield clauses, taking their name from the leading authority on their effectiveness, Micklefield v SAC Technology Limited. More and more, these clauses are also framed to seek to preclude claims an employee might otherwise pursue alleging an unlawful exercise of discretions by the company under the employee share plan, and are deliberately drafted to capture attempts to challenge the way such...
It is almost invariably sensible for the partners of a limited liability partnership ( LLP) to put in place a limited liability partnership agreement, both to prevent any unsuitable default rules under the Limited Liability Partnerships Act 2000 ( LLPA 2000) from automatically taking effect, and to augment the statutory legal regime where it is lacking. Default provisions The Limited Liability Partnerships Regulations 2001, SI 2001/1090 ( LLPR 2001) provide default terms that will govern how an LLP operates if, and to the extent that, there is no express agreement to the contrary......
This Practice Note outlines and condenses the range of calculators created by Lexis®+ UK Employment to support employment solicitors. Automated unfair dismissal schedule of loss or counter-schedule of loss The automated schedule of loss can be found here: Lexis®+ UK Employment— Schedule of Loss application. This tool offers a quick and precise method to draft a schedule of loss for an unfair dismissal claim......
Practice Note—bereaved partner’s paternity leave This Practice Note reviews the entitlement of an employee to be away from work to care for a child during the first year after the child’s birth, placement for adoption, or, for an overseas adoption, the child’s entry into Great Britain, where the child’s primary carer dies on or after 6 April 2026. The entitlement is contained in the Bereaved Partner’s Paternity Leave Regulations 2026, SI 2026/237 ( BPPL Regs 2026), made under sections 80A, 80B and 80C of the Employment Rights Act 1996 ( ERA 1996). Acas has issued guidance on bereaved partner’s paternity leave. The Practice Note explains: who is eligible the notice requirements when BPPL can be taken rights while on BPPL the right to return after BPPL protection from detriment or dismissal for exercising the right remedies for a parental BPPL claim For a sample policy addressing the right to BPPL, see...
Practice Note This Practice Note sets out how to determine a week’s pay under sections 220 to 229 of the Employment Rights Act 1996 for the purpose of compensating breaches of statutory employment rights. It identifies the statutory entitlements for which a week’s pay is relevant, including: statutory minimum notice redundancy payments basic award for unfair dismissal additional award for unfair dismissal maximum compensatory award for unfair dismissal protective award for failure to consult under the Trade Union and Labour Relations ( Consolidation) Act 1992 failure to inform and consult under TUPE 2006 failure to provide written particulars of employment statutory holiday pay It also covers the relevant calculation date; how a week’s pay is worked out for employees with normal working hours and for those with no normal working hours; what...
This Practice Note considers the role of the Certification Officer. It reviews how the post-holder is appointed, their authority to impose fees and a levy, and their administrative remit, which includes maintaining a list of trade unions and employers’ associations and certifying ‘independent trade unions’. It also sets out their quasi-judicial responsibilities, such as handling complaints by trade union members about breaches of union rules, for example concerning disciplinary proceedings. In addition, it addresses enforcement powers enabling the Certification Officer to issue financial penalties, and considers which of the Certification Officer’s orders can be the subject of an appeal to the Employment Appeal Tribunal......
Carer’s Leave Act 2023 and Regulations The principal provisions of the Carer’s Leave Act 2023, which gained Royal Assent on 24 May 2023, took effect on 4 December 2023. The Carer’s Leave Act 2023 updates the Employment Rights Act 1996 ( ERA 1996) by inserting new sections and empowers the Secretary of State to introduce regulations establishing an entitlement to carer’s leave. The Carer’s Leave Regulations 2024 ( Carer’s Leave Regs 2024), SI 2024/251, applicable in England, Wales and Scotland, set out how that entitlement operates. The following guidance on the statutory right to unpaid carer’s leave is available: GOV. UK: Unpaid carer’s leave Acas: For a sample carer’s leave policy, see Precedent: Policy—carer’s leave. Background and context Under the Carer’s Leave Regs 2024, from 6 April 2024 and in specified circumstances, eligible employees have a statutory ‘day one’ right (meaning there is no minimum...
This Practice Note examines the potentially fair reason for dismissal: reasons relating to capability and qualifications It considers terminations arising from incompetence, inadequate skill or aptitude, ill health and qualifications, sickness, health-related causes, incapacity, and substandard performance. The note evaluates medical evidence, performance improvement meetings, and procedural fairness in line with the Acas Code of Practice. It also looks at current medical reports on ill-health capability, the loss of a qualification or a driving licence required for the position, and whether suitable alternative work should be examined. Grounds linked to capability and qualifications can amount to fair reasons for dismissal. For employees, capability means their ability judged by reference to skill, aptitude, health, or any other physical or mental attribute. Qualifications means any degree, diploma, or other academic, technical, or professional credential relevant to the role the employee occupied. Context and evidence...
This Practice Note outlines how awards for financial loss are determined in prohibited conduct claims under the Equality Act 2010 ( Eq A 2010). It addresses: the tortious approach to loss and issues of foreseeability application of the Ogden Tables the likelihood that the event (eg dismissal) would have occurred in any case ( Chagger v Abbey National) credit for sums already received and the sequence of deductions mitigation past and future loss stigma damage or stigma loss loss of earnings and loss of benefits References to ‘prohibited conduct claims’ include claims for discrimination and/or victimisation and/or harassment. For a summary of the remedies available, see Practice Note: Prohibited conduct claims: remedies overview. For guidance on calculating compensation generally, see Practice Note: Prohibited conduct claims: assessing...
A range of employment law questions emerges when a business plans a reorganisation. These matters are both legal and practical, and this Practice Note explores each, alongside guidance on managing how they interact. It assumes the enterprise remains at the same location but operates under a different structure, rather than closing or moving, where redundancy would be the main focus (for which, see Practice Note: Definition of redundancy). In practice, employers may at times take calculated gambles by shortcutting applicable legal procedures, perhaps to save time or through a measure of reverse‑engineering to deliver a preferred outcome. However, this Practice Note proceeds on the basis that the organisation intends to follow a legally compliant course, while also setting out the legal and employee relations risks of taking an alternative route. Initial considerations The reorganisation initiative should, from the outset, be treated as one that could be...
THIS PRACTICE NOTE APPLIES IN RELATION TO ALL PRIVATE SECTOR PENSION SCHEMES It applies across all private sector pension schemes. This Practice Note explores the pension matters that affect the seller on a business sale. For issues that concern the buyer, see Practice Note: Pension issues in business sales—acting for the buyer. For an outline of the pension considerations relevant to trustees of any occupational pension scheme in which the seller participates, see Practice Note: Corporate transactions—pension issues when acting for the trustees. Navigating pension aspects in the context of a business sale can be intricate. Corporate solicitors considering these points should bring in a pensions specialist as early as possible......
Bumping This Practice Note explores the redundancy practice called ‘bumping’, where an employee who would not otherwise appear redundant is dismissed as redundant due to a reduced need for another employee’s duties, thereby becoming eligible for a redundancy payment. It outlines the scenarios in which a bumping redundancy dismissal may occur and when it can constitute a potentially fair reason for dismissal. It further considers whether, when confronted with a potential redundancy situation, an employer is obliged to consider bumping in every instance, and the key factors the employer should assess. An employee is entitled to a redundancy payment if they are dismissed by reason of redundancy and have been continuously employed for the statutory qualifying period (see Practice Note: Entitlement to statutory redundancy payment), or where payment arises under a contractual redundancy scheme (see Practice Note: Contractual redundancy payments). A dismissal is by reason of...
Labour and employment— Bulgaria— Q& A guide [ Archived, 2018 edition] This international employment law guide for Bulgaria is presented in a Q& A format, with the questions set out below. Please note this is the archived 2018 edition; the 2019 edition does not contain an updated guide for this country. The guide can be accessed by clicking the hyperlink immediately below. The questions explored in the guide are: Legislation and agencies Which principal statutes and regulations govern employment? Is discrimination or harassment at work prohibited? If so, which categories are protected under the law? Which primary government bodies or other entities are responsible for enforcing employment legislation and regulations? Worker representation Is there legislation requiring or permitting the establishment of employees’ representatives in the workplace? What powers do they have? Background information on applicants Are there any limits or...
This Practice Note gives a concise overview of key health and safety regulations, listed alphabetically, that currently apply in England and Wales. Carriage of Dangerous Goods and Use of Transportable Pressure Equipment Regulations 2009 The Carriage of Dangerous Goods and Use of Transportable Pressure Equipment Regulations 2009 ( SI 2009/1348) govern the transport of dangerous goods: by road by rail by inland waterway, but only as regards the training and examination arrangements for safety advisers, and the related issue and renewal of vocational training certificates Construction ( Design and Management) Regulations 2015 The Construction ( Design and Management) Regulations 2015 ( SI 2015/51) regulate the management of health, safety and welfare during construction work. They impose duties on clients, designers, contractors and workers across all projects. The term ‘construction work’ is very broad, capturing many minor repair and maintenance tasks within the...
ARCHIVED: This Practice Note outlines the different iterations of coronavirus ( COVID-19) guidance issued by the Department for Business, Energy & Industrial Strategy ( BEIS), and includes versions with tracked changes, illustrating amendments between editions so practitioners can readily determine which version of the relevant guidance applied on any particular date. It is no longer maintained and is provided purely for background reference. In every instance, the guidance versions are listed in reverse chronological order, with the newest shown first. For a guidance tracker dealing with: the different editions of the current BEIS guidance from 14 July 2021, see Practice Note: Coronavirus ( COVID-19)—guidance tracker for employment ( BEIS working safely guidance to 1 April 2022) [ Archived] the multiple versions of current guidance and advice issued by Acas, the Cabinet Office, HMRC, the UK Health Security Agency ( UKHSA)...
FORTHCOMING DEVELOPMENT : The Pensions ( Extension of Automatic Enrolment) ( No. 2) Bill secured Royal Assent on 18 September 2023, becoming the Pensions ( Extension of Automatic Enrolment) Act 2023 (the Act), and it was published on 19 September 2023. The Act empowers the Secretary of State for Work and Pensions to make regulations to: lower the minimum age at which otherwise eligible workers must be automatically enrolled and re-enrolled by their employers into a pension scheme; remove the Lower Earnings Limit from the qualifying earnings band so that contributions are calculated from the first pound of pay; adjust the requirements for the annual review of the qualifying earnings band. Changes to eligibility for automatic enrolment will be introduced following consultation on the detailed method of implementation and timing. The commencement of section 1 of the Act will be “on such day or days as the...
This Practice Note This Practice Note examines the range of sanctions applied to employers and other parties for breaches of the pensions auto-enrolment regime, alongside the protections available to workers under that regime. It covers automatic unfair dismissal or detriment arising from pensions issues, whistleblowing, and enforcement action. It also addresses settling relevant claims by COT3 or by settlement agreement (formerly described as a compromise agreement). The auto-enrolment framework, created by Part 1 of the Pensions Act 2008 ( Pen A 2008), imposes a statutory obligation on employers to arrange the auto-enrolment of all ‘eligible jobholders’ into a ‘qualifying scheme’. Employers are likewise required to make contributions to that scheme for eligible jobholders. The regime contains a number of provisions that impose penalties on employers and other parties for non-compliance. For additional detail, see Practice Note:...
The UK Corporate Governance Code ( UKCG Code), issued and overseen by the Financial Reporting Council ( FRC), is the yardstick for effective governance of companies with equity shares listed in the equity shares (commercial companies) category. The UKCG Code requires these companies to create an audit committee and sets out recommendations covering its make-up, remit and duties. This Practice Note explores those obligations alongside other regulatory provisions and recognised best practice. For commentary, guidance, analysis and materials on the audit committee aspects of the UKCG Code, see Resource Note: UK Corporate Governance Code— Section 4— Audit, risk and internal control. Composition of the audit committee Role of the audit committee Responsibilities of the audit committee Regulatory framework UK Corporate Governance Code The UKCG Code applies to companies with a listing of equity shares in the equity shares...
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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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