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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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Firms sometimes extend low-interest (or interest-free) borrowing to directors or staff as part of a remuneration package, or on particular occasions, to assist the individual with major financial outlays. As with any other form of employment reward, where a loan is made by a third party rather than by the employer, the disguised remuneration rules in Part 7A of Income Tax ( Earnings and Pensions) Act 2003 ( ITEPA 2003) must be considered first, since those provisions take precedence over most mechanisms for charging employment income to tax (including the benefits code). For further information, see: Disguised remuneration and EBTs—overview and, also, regarding the loan charge within the disguised remuneration rules, refer to Practice Note: Disguised remuneration—history of the loan charge. If no third party is involved (eg where the employer itself advances the loan), or an exemption from the disguised...
This Practice Note considers the geographical reach of the Transfer of Undertakings ( Protection of Employment) Regulations 2006, SI 2006/246 ( TUPE 2006), and how TUPE 2006 operates on transnational (cross-border) transfers, for example in the context of offshoring or nearshoring outsourcing arrangements. For wider guidance on international outsourcing, see Practice Note: International outsourcing. EU-derived rules, including substantial elements of TUPE 2006 introduced to fulfil the UK’s obligations under EU law (such as the duty to implement Directive 2001/23/ EC, the Acquired Rights Directive ( ARD)), that applied in the UK at the end of the Brexit transition period/ IP completion day remain in force within the domestic legal order as assimilated law. For more detail, see Practice Note: Assimilated law. Initial considerations Where a dispute or claim concerns an employee working entirely or partly overseas and/or employed by a non- UK employer, two core questions must be...
The Transfer of Undertakings ( Protection of Employment) Regulations 2006 ( TUPE 2006), SI 2006/246 On a relevant transfer, TUPE 2006 effects a statutory novation of transferring employees’ contracts: the transferee steps into the transferor’s shoes. This Practice Note outlines the rights, powers, duties and liabilities that pass, and treats the transferor’s acts or omissions as those of the transferee in relation to transferring staff. For fuller guidance on: what amounts to a relevant transfer under TUPE 2006, see Practice Notes: TUPE—business transfers and TUPE—service provision changes who counts as transferring employees, see Practice Note: TUPE—transfer of employees the duty to inform and consult about a relevant transfer, see Practice Note: TUPE—information and consultation how TUPE 2006 protects transferring staff against contractual variations and dismissal, see Practice Notes: TUPE—variation of contract terms and...
FORTHCOMING CHANGE: A government consultation held from 16 May 2024 to 11 July 2024 invited feedback on several proposals, notably: (1) to ‘reaffirm’ that protection under TUPE 2006 applies only to employees and not to ‘limb (b)’ workers, in order to dispel ‘uncertainty’ arising from the 2019 employment tribunal ruling in Dewhurst v (1) Revisecatch Ltd t/a Ecourier (2) City Sprint ( UK); and (2) to remove the requirement to divide employees’ contracts between different employers when an undertaking is split between more than one incoming business. For added detail, see: Employees defined, below, under the heading ‘ Proposals for reform’, and Two or more transferees, or transfer of only part of a business, below, under the heading ‘ Proposals for reform’. In October 2024, the Labour government’s policy paper Next Steps to Make Work Pay confirmed it would open a call for evidence to take a...
This Practice Note examines an employee’s entitlement to resume work following shared parental leave, as set out in section 75I of the Employment Rights Act 1996 ( ERA 1996) and the Shared Parental Leave Regulations 2014 ( SPL Regs 2014), SI 2014/3050. For comprehensive guidance on the substantive right to take shared parental leave on birth and adoption, refer to Practice Notes: Shared parental leave (birth) and Shared parental leave (adoption). Employees are protected against detriment and dismissal because of shared parental leave. For further detail, see Practice Note: Detriment or dismissal because of shared parental leave. The government’s technical guide for employers addresses whether an employee may return to the same job after shared parental leave at FAQ 76. The guidance titled Employee rights when taking maternity and other types of parental leave also offers an overview of the right to...
To be enforceable, any post-termination covenant must go no further than is strictly required to safeguard the employer’s legitimate business interests (see Practice Note: Legitimate business interest). A clause will not be upheld if it exceeds that minimum (see Practice Note: Post-termination restrictions—reasonableness: Reasonable as between the parties) and is, for instance, excessively broad in geographical scope or length. If a covenant reaches beyond what is needed, whether by area or time, it will not be enforced. Judges are not allowed to recast a covenant to make it reasonable and thus enforceable. Some employers add terms to employment contracts stating that, where the scope or duration is excessive, it may be cut down as needed to make the covenant effective. Such wording is, in general, of little effect. While the courts cannot redraft the covenant’s terms, they can excise...
Under UK health and safety law, self-employed individuals must meet health and safety duties where: they hire people to work for them, and/or the activity being carried out is a prescribed undertaking, or the activity being carried out creates a risk to the health and safety of others Practically, this means self-employed persons who have no workers, do not undertake a prescribed activity, and whose work presents no potential risk to others are exempt from the obligations set by health and safety law. Put simply, if your solo work neither employs others nor endangers anyone, and is not prescribed, these legal duties will not apply. When is someone classified as 'self-employed' under health and safety law? The Health and Safety at Work etc. Act 1974 ( HSWA 1974) states a person is regarded as self-employed if they work for gain or reward other than under a...
This Practice Note provides a concise overview of materials addressing protections and liabilities arising from acts or omissions that constitute religion or belief discrimination, or other forms of prohibited conduct connected to religion or belief. It is designed to orient readers to the wider set of detailed resources available on each aspect of the topic The level of detail here is deliberately limited; its core function is to direct subscribers to the comprehensive Practice Notes that examine the subject in full. Accordingly, treat this as a starting point for research, with complete information accessible in the sources linked below The characteristics protected The Equality Act 2010 ( Eq A 2010) safeguards individuals against discrimination and other prohibited conduct relating to certain specified characteristics. Some protections attach only to one listed characteristic, while others operate consistently across all, collectively described as ‘the protected...
This Practice Note This Practice Note explores the impact that an unreasonable refusal of alternative employment may have on an employee’s entitlement to a redundancy payment, the requirements an offer of alternative work must satisfy for that entitlement potentially to be affected, what amounts to an offer of suitable employment, what constitutes an unreasonable refusal, and the burden of proof in such matters. Employees who are made redundant are sometimes offered further work. Where such an offer is made but the employee declines it, this may have the effect of removing the employee’s right to a redundancy payment. Only offers of further work that meet certain conditions have the capacity to affect the employee’s entitlement to a redundancy payment. The conditions are: the offer must be for a renewed contract, or a new contract the renewed or new contract must commence immediately after the old one ends, or no...
FORTHCOMING CHANGE: Regarding the information that must be supplied to workers at the commencement of employment, a fresh entitlement will require a worker to receive a written notice of their right to join a trade union, issued at the very same time as the section 1 statement of employment particulars. This will be introduced by amendments to Part III of the Trade Union and Labour Relations ( Consolidation) Act 1992, as provided for in section 58 of the Employment Rights Act 2025. The details of the information to be provided in that notice, the form the notice must take, and the manner in which the notice must be given will be set out in secondary legislation. For further details and information, see Practice Note: Written statement of right to join a trade union. This Practice Note addresses the entitlement to a written...
Work-related stress (or occupational stress) This Practice Note explores issues that can arise when an employee is experiencing work-related stress (also called occupational stress), that is, stress caused or worsened by work, or mental ill health affecting the employee’s work or attendance. The Health and Safety Executive describes stress as the adverse reaction people have to excessive pressures or other types of demand placed upon them. Stress is not an illness in itself, but it can make people ill, for example by contributing to anxiety and depression. Stress, anxiety and depression can also raise the risk of heart disease, back pain, gastrointestinal illnesses or skin conditions. According to Acas guidance on supporting mental health at work, common mental health issues include stress (this is not classed as a medical condition but can still have a serious impact on wellbeing), depression and anxiety. Less common...
FORTHCOMING CHANGES: An Equality and Human Rights Commission ( EHRC) consultation ran from 2 October 2024 to 3 January 2025, seeking views on proposed revisions to the statutory Code of Practice on services, public functions and associations, to reflect significant developments in legislation and case law since the Code’s 2011 publication. After the Supreme Court judgment in For Women Scotland v Scottish Ministers, the EHRC said it would work ‘at pace’ to embed the ruling’s implications into the updated Code, issued an interim update on 25 April 2025 addressing the UK Supreme Court judgment’s practical effects, and then opened a further consultation on additional updates to the Code between 20 May 2025 and 30 June 2025. A revised iteration of the interim update, including ‘points of clarification’, was released on 24 June 2025. For further information, see: LNB News 02/10/2024 23, Law360: EHRC to update legal...
Mediation Mediation is a type of alternative dispute resolution ( ADR) commonly used in the employment context to settle conflicts. For further detail on the general use of mediation in employment disputes, see Practice Note: Mediation in employment—introduction. Mediation can occur in a range of situations, both during employment and after it has finished. A distinction can be made between: Workplace mediation Employment mediation Workplace mediation is deployed where there is an ongoing working relationship between the parties at the start of the process. The mediator supports the parties in attempting to resolve their disagreement so they can continue working together. The emphasis is on repairing the relationship rather than concluding a legal dispute. Employment mediation is used where a tribunal claim is either under consideration or has been submitted. The employment relationship may already have ended, although that is not always the case. The...
FORTHCOMING CHANGE : From 6 April 2026, section 35 of the Employment Rights Act 2025 is brought into force (by regulation 3 of The Employment Rights Act 2025 ( Commencement No. 2 and Transitional and Saving Provisions) ( Amendment) Regulations 2026, SI 2026/323). It obliges employers to maintain records sufficient to demonstrate, and adequate to show, whether they have complied in full with the entitlements in regulations 13(1) (annual leave), 13A(1) (additional annual leave), 15B(2) (annual leave for irregular and part-year workers) and 16(1) (holiday pay), and with the requirements in regulations 14(2) (payment in lieu of annual leave), 14(6) (payment in lieu of annual leave) and 15E(2) (payment in lieu of annual leave for irregular and part-year workers) of the Working Time Regulations 1998 ( WTR 1998), SI 1998/1833, and to retain those records for six years from the date of creation by...
This Practice Note examines the caps and constraints on working time and rota arrangements set by the Working Time Regulations 1998 ( WTR 1998), SI 1998/1833. For information on who is covered by WTR 1998, see Practice Note: Eligibility for working time rights on workers’ entitlements under WTR 1998 and how they are enforced, see Practice Note: Working time rights and obligations on remedies, see Practice Note: Remedies for breach of working time rights Employers and workers may agree any schedule they prefer, provided it does not exceed the maximums stipulated by WTR 1998. The WTR 1998 give domestic effect to Directive 2003/88/ EC, the Working Time Directive ( WTD). UK statutes that implement EU-derived obligations are now treated as assimilated law. For more detail, see Practice Note: Assimilated law. For guidance on the extent to which Court of Justice of the EU ( CJEU)...
This Practice Note explains the conditions that an individual is required to meet in order to fall within the protection afforded by the Working Time Regulations 1998 ( WTR 1998), SI 1998/1833. Although WTR 1998 grants rights to most workers, several groups are excluded from some or all of its provisions in practice. EU-derived measures like WTR 1998, enacted to fulfil the UK’s obligations under EU law, form part of assimilated law for these purposes. For more detailed information, see Practice Note: Assimilated law. References are made in this Practice Note to judgments of the Court of Justice of the European Union ( CJEU). For guidance on the extent to which CJEU rulings bind UK courts, see Practice Notes: Assimilated law— Assimilated case law and Retained EU law and assimilated law— Retained and assimilated case law. Workers Under WTR 1998, SI 1998/1833, reg 2(1), the term ‘worker’ carries a...
This Practice Note considers how 'worker' is defined under the Employment Rights Act 1996 ( ERA 1996), alongside other employment statutes. Key concepts For the purposes of employment law, someone supplying labour or services to another may fall into one of the following: a worker, which brings specific statutory protections under employment law an employee (see Practice Note: Employee status), attracting further employment law entitlements (eg protection from unfair dismissal, maternity leave and redundancy rights) neither a worker nor an employee (ie self-employed, or an independent contractor), in which case employment law affords no rights Everyone with employee status also satisfies the statutory meaning of 'worker' for the purposes of the wider category's protections. However, not every worker falls within the definition of 'employee'. Accordingly, a person who does not achieve employee status may nonetheless be a 'worker'. For a...
Employment Rights Act 1996 and Public Interest Disclosure Act 1998 By virtue of the Employment Rights Act 1996 ( ERA 1996), as modified by the Public Interest Disclosure Act 1998 ( PIDA 1998) and subsequently by the Enterprise and Regulatory Reform Act 2016, any agreement made between employees and their employer is of no legal effect, in so far as it aims or purports to stop an employee from making a protected disclosure......
This Practice Note outlines workers' rights to pursue whistleblowing claims where they have experienced detriment and/or been dismissed for making a protected disclosure in the workplace. It addresses the broadened meaning of worker in this setting and identifies categories barred from bringing such claims. It also covers claims arising from detriment or dismissal linked to a protected disclosure made with a former employer. It summarises the position for such claims. No qualifying period There is no minimum period of employment required to qualify to bring a whistleblowing claim under these provisions. Those included: the extended definition of 'worker' Every worker may bring a claim for any disadvantage suffered due to an act or failure to act by their employer, where that conduct was because the complainant made a protected disclosure. For these purposes, the term 'worker' carries an expanded definition......
This Practice Note explores the defences and exceptions available in relation to a whistleblowing claim, and how these might be relied upon in practice. It also summarises the key principles that govern such claims... Those wholly or partly excluded from bringing a claim Although the scope of the whistleblowing regime is very wide, some categories of people are either partially or entirely prevented from pursuing a claim under it at all. For more detail, see Practice Note: Entitlement to claim whistleblowing— Excluded persons... Lack of reasonable belief in wrongdoing To count as a qualifying disclosure, the worker must hold a reasonable belief that their allegation indicates one or more of the specified forms of wrongdoing has taken place or is occurring. A disclosure will not qualify if, assessed against the information the worker possessed at the point the decision to disclose was taken, it was not...
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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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