Legal Practice Notes

This Practice Note explores when an employee may qualify for a redundancy payment under a contractual redundancy scheme (enhanced or occupational scheme or redundancy policy) and how this aligns with the statutory redundancy regime. It summarises the kinds of enhancements employers typically provide. It also assesses issues such as whether an employer can negate entitlement under an enhanced scheme by serving notice for a different, non-redundancy reason. Remedies, age discrimination considerations and tax treatment are likewise reviewed. Under the Employment Rights Act 1996 ( ERA 1996), an employee dismissed by reason of redundancy after two or more years’ continuous service is entitled to a statutory redundancy payment, calculated by reference to age, length of service and average weekly pay, subject to a cap. For further information, see Practice Note: Entitlement to statutory redundancy payment. Nevertheless, it is fairly common for...

New starters share purchase transactions collection ( EHS issues)—contract stage During the initial or due diligence stage, the share purchase agreement ( SPA) is ordinarily produced and then completed within that same stage itself, in practice. The purchaser’s solicitors usually draft the initial working version of the SPA and then send it to the seller’s solicitors for a mark-up. Negotiations can continue all the way through to the date on which the SPA is ultimately signed. The seller’s solicitors will prepare the......

This Practice Note reviews termination by the Contractor under the FIDIC Red, Yellow and Silver Books 1999, the Gold Book 2008 and the Pink Book 2010. It does not consider any general right to terminate at law. In addition, the governing law of the Contract may influence how certain provisions operate. For discussion of the 2017 editions of the Red, Yellow and Silver Books, see Practice Note: FIDIC contracts 2017—termination by the Contractor... Who can terminate? Both the Employer and the Contractor may bring the Contract to an end. Clause 15 sets out the process for Employer termination, and Clause 16 sets out the process for Contractor termination. Termination is also addressed in the following: Sub- Clauses 9.4, 11.4 and 19.6 Sub- Clause 10.7 of the FIDIC Gold Book For guidance on termination by the Employer, see Practice Note: FIDIC contracts (pre-2017...

This Practice Note is designed to offer guidance to employers on recognising issues with insolvent contractors and on ways the employer may take precautionary steps to protect itself in advance. For details and information on the steps to follow where the contractor has become insolvent, see: Employer steps to take if contractor becomes insolvent—checklist......

Interaction with the additional State pension Up to 6 April 2016, State pension provision operated on two tiers: the basic State pension — a flat-rate amount, largely determined by National Insurance contributions ( NICs) actually paid or credited, the additional State pension, called the State Second Pension ( S2P) — as the name suggests, it sat on top of the basic State pension and was linked to a person’s earnings. Before April 2002, the additional element was known as the State Earnings Related Pension Scheme ( SERPS). Prior to 6 April 2016, pension schemes could either contract in to, or contract out of, the additional State pension. Where a scheme was contracted in, members would, subject to their earnings, receive the additional State pension alongside their basic State pension. Where a scheme was contracted out, members would not receive the additional State pension. In...

contract management ‘ Contract management’ carries one meaning for your organisation and a subtly different one for you as an in-house lawyer. To do your job, you must grasp both senses and how they interact within the business. For the organisation, it describes procuring goods or services: scoping requirements, selecting an appropriate supplier, moving into the nuts and bolts of commercial negotiation and, ultimately, formalising the deal in documents. In some organisations, the lengthy drafting and agreement of those papers becomes an afterthought, readily handed off to the lawyer. When signatures are on the page, the real work of overseeing the contract begins, including assuring performance and compliance. These activities are often deprioritised until something goes awry and the legal team is asked to intervene. As an in-house lawyer, you will be involved, to a greater or lesser degree, at every stage of this...

This Practice Note presents a concise overview of the general principles that govern contract interpretation. Although there is no single formula for construing terms (as much depends on the particular facts of each case), a substantial body of case law has developed certain overarching principles. The leading authorities are outlined below. Investors Compensation Scheme v West Bromwich Building Society Lord Hoffman articulated five key propositions that have become the primary guidance on interpreting contracts: the test is objective: what a reasonable person, with the background reasonably available, would have understood the agreement to mean at the time relevant background, the so-called matrix of fact, may properly be considered previous negotiations and subjective intention are excluded (with limited exceptions, for example rectification) the words used must be read in the context of the contract as a whole, against the factual background a common-sense approach that the......

An agreement on the terms of a contractual proposal only crystallises into a binding and enforceable contract once that proposal has been accepted. This Practice Note explores what can amount to contractual acceptance, the ways it may be communicated, and the circumstances in which it can be withdrawn. For guidance on identifying when an offer, capable of acceptance, has been made, see Practice Note: Forming enforceable contracts—offer. Note: Part 36 settlement offers under CPR 36 sit outside the ordinary principles of contract law and are governed by the distinct regime in CPR 36. For guidance on accepting a CPR 36 offer, see Practice Note: Part 36 offers—how and when to accept a Part 36 offer. What do we mean by an acceptance of an offer? Acceptance is the final, unconditional manifestation of assent to the terms of a contractual offer. Note: it is not...

Note: this Practice Note deals solely with the creation of binding legal relations by contract (whether written or oral) and does not address arrangements that must be made by deed to be valid; see Practice Note: Deeds. While many will recognise the usual requirements for a contractually binding agreement—such as offer, acceptance, consideration and certainty (see: Forming enforceable contracts—overview)—it is helpful to grasp the courts’ overall approach and how those elements fit together. The essential ingredients of an enforceable contract offer and acceptance consideration (unless the contract is executed by deed) an intention to create legal relations (that is, an intention to be legally bound) certainty These broad principles have greater depth, as explored in the following Practice Notes: Forming enforceable contracts—offer Forming enforceable contracts—acceptance Forming enforceable...

What is continuous improvement? The concept of continuous improvement ( CI) is frequently made needlessly complex by jargon, yet it is exactly as it sounds: persistently seeking ways to enhance processes, methods and procedures to: remove obstacles make them as efficient as possible and therefore save time and money Improvements do not need to be large-scale. A sequence of modest but effective changes quickly adds up. Small wins build momentum. Benefits accumulate fast over time too. Together they save time and money. CI tools and techniques can help you repair processes that are no longer effective and reassess processes that may appear to work but could still be improved to deliver greater efficiencies and cost savings. Above all, CI is about engaging people and sharing ideas, questioning established habits, and agreeing how to measure the success or failure of new...

The principles of continuous improvement can be applied in law firms to boost efficiency. This Practice Note aims to cut through jargon and explain the ideas with a case study... What is CI? CI is often made needlessly complex, but it simply means continually seeking ways to refine processes, methods and procedures. The aim of CI is to: eliminate bottlenecks streamline workflows as far as possible and thus save time and reduce costs Improvements need not be sweeping. A series of modest, well-judged tweaks quickly accumulates. CI tools and techniques help you fix processes that no longer deliver, and review those that appear adequate but could be refined for greater efficiency and cost savings. Above all, CI is about: involving people and gathering ideas questioning entrenched, habitual practices establishing measures to judge the success or failure of new...

The five steps This Practice Note outlines a straightforward five-step continuous improvement (boosting efficiency) framework and shows its application through a case study about client complaints. The five steps in this efficiency-improving framework are: define (ie identify) measure analyse improve control Management consultants often refer to this as the DMAIC framework. It is an excellent framework to follow when enhancing an existing process. It takes you through each element in sequence and ensures the process has been considered from every angle. What does each step involve? The table below sets out each of the five steps and illustrates them by reference to a hypothetical scenario, ie ‘we receive too many complaints’. Define (identify) Identify what the issue or problem is. The scope of the problem needs to be defined, and the symptoms stated clearly and succinctly. The problem may not be fixed at this point; you may have...

Continuous improvement ( CI) is currently in vogue within management, yet the prevalence of management-speak can leave non- CI professionals perplexed. Do not be put off; CI’s core principles can be brought into legal teams to boost efficiency. This Practice Note sets out to cut through the jargon, show how it works for in-house lawyers, and bring the ideas to life with a case study. What is CI? CI is often defined in overly complex terms, but the idea is straightforward: keep looking for better ways to run your processes, methods and procedures. The objectives are to: remove bottlenecks streamline processes as much as possible save time and money Changes need not be dramatic; a sequence of small, well-judged adjustments—frequently called ‘marginal gains’—can rapidly accumulate. CI tools and techniques help you repair processes that have stopped working effectively, and reassess those that seem fine but...

This ‘ How to’ guide explains the process for working out an employee’s period of continuous employment under the Employment Rights Act 1996 ( ERA 1996). It covers when that period starts and finishes, what counts as a break in continuity, and circumstances involving a change of employer. Why does continuity of employment need to be determined? The duration for which a person has been continuously employed (often called length of service) matters because: there are rights a person only gains after a specified span of continuous employment. For example, an employee must have: two years to bring a standard unfair dismissal claim two years to be entitled to a statutory redundancy payment one month to be entitled to statutory minimum notice ...

This Practice Note reviews the jurisdictional service gateway, or ground of service, in CPR PD 6B, para 3.1(24) concerning contempt applications. It explains gateway 24 and offers guidance on how the courts are likely to construe it. This Practice Note should be read alongside the service Practice Notes: Cross-border service—jurisdictional gateways (principles) Cross-border service—documents other than the claim form—contempt application to be served outside the UK For guidance on contempt and committal, see: Contempt and committal—overview Gateway 24 Gateway 24 (contempt applications) is designed to address the problems faced when serving contempt applications outside England and Wales. Gateway 24 ( CPR PD 6B, para 3.1(24)) states: ‘(24) A contempt application is made, whether or not, apart from this paragraph, a claim form or application notice containing such an application can be served out of the...

Types of land contamination liabilities There are several liability types linked to contaminated land, summarised as follows: Regulatory action: planning regime; contaminated land regime; environmental damage regulations; water pollution legislation; environmental permitting regime Third party liabilities: private nuisance claims for off-site migration; public nuisance claims; personal injury claims; claims relating to negligent advice; misrepresentation; insurance disputes Contractual liabilities: indemnities in sale contracts; indemnities in corporate and sale and purchase agreements; remediation agreements Other liabilities: landlord and tenant obligations; clean-up, investigation and monitoring costs; loss of property value; delay or aborted transactions; accounting provisions; negative publicity Planning regime In most cases, contamination is addressed voluntarily when land is developed or redeveloped via the planning system. The National Planning Policy Framework sets the planning policy for managing contamination risks. Question Who is liable? Answer The developer is responsible for making sure a development is safe and that the site is...

Determining liability Enforcing authorities are to apply the five-step approach set out in statutory guidance when determining liability under the Environmental Protection Act 1990, section 78F ( EPA 1990). Not every stage will be applicable in every matter; in many cases only some steps will need to be considered. See Practice Note: Contaminated land—process for determining liability. At step four, the authority decides whether any members of a liability group ought to be excluded from liability. Questions of exclusion can surface where a site’s history is intricate. For instance, successive occupiers or varying industries might each have added to contamination, and fairness may warrant excluding some of them from responsibility. Crucially, where a liability group has a single appropriate person, that individual cannot be excluded. Likewise, if there are two or more appropriate persons, the entire set cannot be excluded, so at least one must remain...

When can costs be recovered by an enforcing authority? Subject to sections 78J(7) and 78K(6) of the Environmental Protection Act 1990 ( EPA 1990), an enforcing authority may reclaim its reasonable expenses from the appropriate person(s) after carrying out remediation using its powers under EPA 1990, s 78N(3)(a), (c), (e) and (f), where any of the following apply: there is an imminent risk of serious harm, or serious pollution of controlled waters a person fails to meet any requirement set out in a remediation notice having considered hardship, it decides not to pursue recovery of some or all costs (for example, it may still recover where entitled to a proportion of those costs) no appropriate person, in relation to a particular matter, is found after reasonable inquiry (for example, it may later recover if an appropriate person is...

What is contaminated land? ‘ Contaminated land’ is a precise legal expression set out in Part IIA of the Environmental Protection Act 1990 ( EPA 1990). The contaminated land regime places strict, retrospective liability. It obliges local authorities ( LAs) to find contaminated land within their districts and to apportion responsibility for land contaminated historically. By contrast, ‘land contamination’ is a broad label for any land that might be affected by pollutants, though not necessarily to thresholds that trigger contaminated land liability. When deciding whether land is contaminated, LAs must follow statutory guidance from Defra or the Welsh Government. Updated statutory guidance took effect in April 2012. The default assumption when assessing land with potential contamination is that it is not ‘contaminated land’ unless there is a reason to conclude otherwise at that point in time as such......

Due diligence in contaminated land transactions Lambson Fine Chemicals Ltd v Merlion Capital Housing Ltd underlines the need for robust technical and legal due diligence on brownfield schemes. Former chemical site in the spotlight The 40‑acre Castleford site had hosted chemical production since the 1860s. In the late 1940s, Laporte owned it and manufactured sulphuric acid. Lambson Fine Chemicals then operated there for three decades, and in 2004 sold to Merlion Capital Housing for £12.25m for planned commercial and housing development. Lambson took a one‑year leaseback to demolish the plant, while Merlion retained £500,000 to meet clean‑up costs arising from those works. Most of that sum was returned to Lambson, leaving £150,000 unpaid. Dispute over clean up costs After completion, Merlion identified 14,000 tonnes of soil at the site’s centre containing “ Blue Billy”, a waste by‑product with high cyanide...