Legal Practice Notes

This Practice Note does not address or cover refunds of contributions where a member has died. For further details on these, please consult Practice Notes: Death benefits—final salary schemes and Death benefits—money purchase schemes. Within this Practice Note, any mention of 'trustees' equally refers to the manager of a registered pension scheme. In what circumstances can a refund of member contributions be made? A scheme can allow repayments of member contributions in a variety of situations. For example, where a defined benefit ( DB) member has under three months' pensionable service, the current legislative framework gives that member no entitlement to have their pension benefits preserved within a DB occupational pension scheme. In such cases, it is also common for the scheme to provide that member with a repayment of their own contributions......

What is the Teachers’ Pension Scheme? The Teachers’ Pension Scheme ( TPS) is a statutory public service pension arrangement for members of the teaching profession in England and Wales. Since 1 April 2015, the TPS has consisted of two schemes: The reformed TPS (often described in TPS literature as the ‘2015 Scheme’), established on 1 April 2015 under the Public Service Pensions Act 2013 ( PSPA 2013) as a career average revalued earnings ( CARE) scheme. This Practice Note concerns that scheme. The legacy TPS, created by the Superannuation Act 1972 ( SA 1972) as a final salary scheme for those who joined before 1 April 2015. It closed to future accrual on 31 March 2022, while retaining a final salary link within that scheme. For more, see Practice Note: The legacy Teachers’ Pension Scheme. Separate schemes operate in Scotland and Northern Ireland and are outside the scope of this...

What is the National Health Service Pension Scheme? The NHSPS is an unfunded public service occupational pension that delivers salary‑related, defined benefit ( DB) retirement provision for health service staff. The reformed NHSPS (often termed the ‘2015 Scheme’) began on 1 April 2015 as a career average revalued earnings ( CARE) arrangement. New starters since that date have joined this scheme, which is the focus of this Practice Note. The legacy NHSPS (the ‘1995/2008 Scheme’) consists of two separate final salary sections—the 1995 Section and the 2008 Section—both closed to future accrual, while preserving a final salary link within that scheme. For further details, see Practice Note: The legacy National Health Service Pension Scheme. There are distinct schemes in Scotland and Northern Ireland, which are not covered by this Practice Note. When the reformed NHSPS opened, the government acted to close the 1995 and 2008 Sections to future...

ARCHIVED : This archived Practice Note summarises a number of key and/or illustrative cases relevant to reflective loss. It is not maintained and is for background information only. For guidance on the background to and principle underpinning this rule, as well as details of the key practical issues that it is sensible to have in mind should you have a case in which the rule might be relevant, see Practice Note: Reflective loss. Case details and analysis Court of Appeal Burnford v Automobile Association Developments Ltd [2022] EWCA Civ 1943 News Analysis: Right to strike out a claim because reflective loss is not recoverable ( Burnford v Automobile Association Developments Ltd) 14 November 2022 This appeal considered whether the judge had correctly decided—by the judgment of 28 February 2022, referenced below—to strike out a claim by former...

Re-engagement This Practice Note considers when re‑engagement will be directed as a remedy under section 112 of the Employment Rights Act 1996 ( ERA 1996) after a finding of unfair dismissal. It addresses the tribunal’s obligation to ask the employee if re‑engagement is sought and, if so, to consider making an order for re‑engagement. The Note then explores the situations in which re‑engagement may be ordered, the required contents and effect of a re‑engagement order, and how arrears of pay and other benefits are calculated. It explains that a second‑stage re‑engagement hearing will take place where the order has not been complied with, whether partially or at all, including calculation of an additional award under ERA 1996, s 117 if the tribunal finds it was practicable for the employer to comply with the re‑engagement order. Re‑engagement is one of the orders a tribunal may make under ERA...

This Practice Note This Practice Note considers why a fair process is required when ending employment by reason of redundancy, and sets out the steps that should feature in such a process. Where there is no statutory duty to consult existing employee representatives (see Practice Note: Collective redundancy—the triggers for the statutory consultation obligations), an employer may still choose to consult to support fairness for unfair dismissal purposes and to foster sound industrial relations, particularly where a collective bargaining agreement provides for this. For the approach to follow when statutory consultation applies, or where consultation with union or other employee representatives is otherwise necessary, see Practice Note: Collective redundancy—statutory information and consultation obligations. This Practice Note gives guidance on a fair procedure where: the statutory collective consultation obligations do not apply, and there is no other obligation (or need) to consult union or other...

Redundancy Redundancy is among the five routes by which an employer may unilaterally bring an employment contract to an end, in circumstances where that termination may constitute a potentially fair dismissal. The other four potentially fair grounds for dismissal are: the employee lacks the capability to perform the role the employee’s conduct renders continued employment untenable the employee cannot remain in the post without breaching a legal restriction the residual category of ‘some other substantial reason’ Section 309 of the Income Tax ( Earnings and Pensions) Act 2003 ( ITEPA 2003) provides that, save for earnings, no charge to income tax on employment income arises by reason of a redundancy payment or an approved contractual payment, except to the extent that Chapter 3 of Part 6 (payments and benefits on termination of employment, etc) applies......

Redundancy is a potentially fair reason for dismissal under section 98(2) of the Employment Rights Act 1996 ( ERA 1996). That said, as with other potentially fair grounds, whether a redundancy dismissal is fair is judged by applying the test of whether an employer’s decision to dismiss for that reason falls within the range of reasonable responses of a reasonable employer in the particular circumstances and in that line of business. Not following a fair process when dismissing an employee by reason of redundancy will ordinarily render the dismissal unfair. If an employer proposes to dismiss as redundant 20 or more employees at a single establishment within any period of 90 days or fewer, there is also a statutory duty to consult collectively (see Practice Notes: Collective redundancy—the triggers for the statutory consultation obligations and Collective...

THIS PRACTICE NOTE LOOKS AT PENSIONS REDUCTION IN THE CONTEXT OF ONGOING REGISTERED DEFINED BENEFIT PENSION SCHEMES Reducing a member’s pension entitlement (that is, cutting accrued benefits or a pension already in payment) within a continuing defined benefit occupational scheme gives rise to complex questions in modern pensions law, and there are several hurdles to clear—or navigate around—before any reduction can lawfully occur. Key obstacles include: sections 91–93 of the Pensions Act 1995 section 67 of the Pensions Act 1995 the provisions of the scheme’s governing documentation Further, decreasing a pension in payment may create adverse consequences under the pensions tax regime, which must be weighed carefully before proceeding (see Reducing pensions in payment—position under the pensions tax regime below). A reduction might be considered in various contexts, for example scheme restructuring or reclaiming overpayments, and both legal and tax impacts should be...

This Practice Note outlines the range of scenarios a developer may face when seeking vacant possession of a prospective development plot. It reviews the possible occupiers and rights that may exist, spanning business tenancies protected by Part II of the Landlord and Tenant Act 1954 ( LTA 1954), through to long-standing occupants, licensees and telecommunications operators, and the routes to end those rights and secure possession. As timing is crucial to redevelopment, the Practice Note also sets out when to serve notices and take steps to regain possession, and highlights the need for the developer to address all interests on the site. Introduction An apparently straightforward redevelopment site may carry multiple interests with varying levels of legal protection. Landlords intending to redevelop should assess what those interests are, together with the available methods and timings for bringing them to an end, well before any works are due to...

The court's power to rectify A claim for rectification is not, strictly speaking, a probate claim, but it falls under that wider category as an extension of a want of knowledge and approval claim where a mistake has arisen in the drafting of a Will. For deaths after 31 December 1982, section 20 of the Administration of Justice Act 1982 ( AJA 1982) allows rectification. The court may amend a Will if satisfied it is framed in a way that does not give effect to the testator’s intentions because of: a clerical error; or a failure to comprehend his instructions, and can order changes so the Will achieves those intentions. Despite the affirmative tenor of that provision, this rectification power is discretionary, and the circumstances in which it applies are set out in AJA 1982, ss 20(2)–20(4). Under section 20(2), an...

This Practice Note reviews the principal authorities on correcting pension scheme documentation. An evolving body of case law has set out broadly settled principles, yet judicial approaches may differ in the extent of pragmatic remedies the courts deploy. Decisions outside the pensions sphere can likewise inform rectification questions. Comparable rulings outside the pension context may likewise be pertinent when assessing whether rectification is appropriate. Lansing Linde v Alber This decision was notable in confining rectification to situations where the instrument did not capture the parties’ shared intention. Lansing Linde sponsored two defined benefit schemes. Following Barber, each scheme equalised benefits for male and female members. On their face, the equalisation changes in both schemes granted men and women an unconditional right to retire from age 60. The employer contended it had meant to increase women’s pension age to 65 and to allow an...

This Practice Note is based on an original work by Ben Sheldrick of Magrath Sheldrick LLP. Running equitable recruitment procedures helps employers curb the chance of discrimination claims succeeding against them. No statute or guidance stops a business selecting the strongest candidate for the role; however, discriminating against an applicant at any point in the hiring journey is unlawful. Employers should remember that each candidate deserves fair treatment at every step of the process. Matters of immigration and employment law that concern illegal working ought to be handled in tandem at all stages of the employment relationship, from hiring through to dismissal. Accordingly, employers must ensure HR paperwork, policies and procedures address these points from the beginning. Whether an organisation relies on a specialist personnel or HR team, or delegates hiring duties to line managers and supervisors, everyone involved in...

This Practice Note explores the legal and practical questions that can arise when an employer (called in this note the 'new employer') seeks to hire an individual or, in a team move scenario, a group of individuals, from a competitor employer (described in this note as the 'former employer' or 'current employer'). It considers how to minimise the potential risk of legal liability for economic torts, including: inducing a breach of contract conspiracy (by unlawful and lawful means) unlawful interference with business as well as other protective action. It sets out what action to take where the employee is in breach. Privilege, including common interest privilege, is assessed in this note. Litigation and settlement strategy is addressed as well. The legal framework In employee competition disputes, the basis of litigation will be the express and implied terms of the employment contract between the...

This Practice Note examines damages for breach of contract where the remedy sought comprises wasted expenditure, diverted management time and litigation costs arising from the breach. These are a form of pecuniary loss. For a broader overview of contractual damages, see Practice Note: Contractual damages—general principles; which sets out Baron Parke’s dicta in Robinson v Harman on the compensatory purpose of damages for breach, namely that an innocent party is entitled to be put, as to money, in the position they would have occupied had the contract been fulfilled, as if the agreement had been performed. For focused guidance on recovering losses for breach of contract, see the following Practice Notes set out below: Contractual damages—pecuniary losses (expectation, reliance or gain-based financial losses) Contractual damages—non-pecuniary losses (non-financial losses) Be aware that contracts frequently attempt to limit or exclude categories of loss recoverable in any given case for...

Trustees should be alert to circumstances that can trigger a debt under section 75 of the Pensions Act 1995, so they understand: when such a liability crystallises, and when they must act to have it assessed and recovered They have a general obligation to reclaim their scheme’s assets. If they fail to act properly, and without undue delay, to recover an outstanding sum, this may amount to a breach of trust and could expose them to claims for any loss suffered. For more on disputes that members may bring under occupational or personal pension schemes, see Practice Note: Pension disputes—avenues available to scheme members; and for trustee protections, see Practice Note: Trustee liability and protection in pensions. When does a section 75 debt arise? In summary, a section 75 debt becomes payable to an underfunded defined benefit scheme when: the scheme is wound up the employer is insolvent for section 75...

In most Scottish criminal matters, defence representatives usually obtain material through disclosure provided by the Crown, in line with duties under the Criminal Justice and Licensing ( Scotland) Act 2010 ( CJL( S) A 2010). For guidance on such material, refer to Practice Note: Disclosure of evidence in Scottish criminal proceedings. However, some situations call for information retained by the Crown that falls outwith its statutory disclosure duties, that is, material the Crown holds but is not obliged by the CJL( S) A 2010 to reveal to the defence. At times, the necessary information sits with a third party; documents or records may lie with external organisations or individuals rather than the Crown. This Practice Note sets out how such material can be recovered, and describes the mechanisms available to secure access in those...

The Landlord and Tenant ( Covenants) Act 1995 ( LT( C) A 1995) Governs the ongoing liability of former tenants and their guarantors for rent and service charge after a lease has been assigned. This Practice Note addresses: when arrears may be pursued from a former tenant or their guarantor the notice steps a landlord must follow to recover arrears from a former tenant or their guarantor (a ‘s 17 notice’) the entitlement to, and terms of, an overriding lease, together with the application process key considerations for landlords before issuing a s 17 notice Landlords must serve notice promptly for any ‘fixed charge’ that has fallen due, or they forfeit the right to recover it. After payment, former tenants and their guarantors may request an overriding lease. LT( C) A 1995, s 17 was introduced to tackle a significant issue faced by former tenants and guarantors during the early 1990s...

Ministers may ‘recover’ planning appeals for their own determination. In such cases, rather than the inspector issuing the final decision, they prepare a report with a recommendation on how the appeal ought to be decided. The Secretary of State/ Welsh Ministers then reach the decision on the appeal, taking the inspector’s advice into account. Do not confuse recovery with ‘call-in’, where ministers take over the original application from the local authority. See Practice Note: Call-in by the Secretary of State. When does recovery take place? Recovery can happen at any point in the appeal up to the moment the inspector issues their decision, including after a site visit, a hearing, or an inquiry has already occurred. What appeals can the Secretary of State/ Welsh Ministers recover? The Secretary of State/ Welsh Ministers have set out criteria describing the kinds of appeals they may choose to recover for their own...

This FLASHCARD is designed to help you take in and retrieve the essential points on the recognition of UK central counterparties ( CCPs) under Regulation ( EU) 648/2012 ( EU EMIR). How did Brexit affect the EU market for clearing services? Before Brexit, three UK CCPs— London Clearing House ( LCH), LME Clear and ICE Clear Europe—held a dominant role in the EU market for derivatives clearing. As at June 2017, it was estimated that UK CCPs cleared roughly 90% of euro-denominated interest rate swaps for euro area counterparties, and 40% of their euro-denominated credit default swaps. When the implementation period ended on 31 December 2020, UK CCPs were no longer under EU supervision and became third country CCPs for the purposes of EU EMIR. Article 25(1) of EU EMIR provides that a......