Legal Practice Notes

Age discrimination—the statutory framework Rules outlawing age discrimination entered UK statute in 2006, arising from shifts in EU law—most notably the Archived Directive 2000/78/ EC ( Archived Equal Treatment Framework Directive), as it had effect immediately before IP completion day (ie 11 pm on 31 December 2020). Although the Archived Equal Treatment Framework Directive, like other EU directives, has been transposed into UK domestic legislation, the directive itself does not form part of domestic law (not even as assimilated law), and stands outside it. The UK measures enacted in 2006 to give effect to the Archived Equal Treatment Framework Directive and other EU law applied to employment generally, rather than being confined to pension schemes. The current statutory architecture is set out in the Equality Act 2010 ( Eq A 2010) and, in respect of pension schemes, the Equality Act ( Age...

The aim of this Practice Note is to outline the principal age discrimination issues that may emerge when designing and running different kinds of employee share schemes. It covers the core rules on direct and indirect age discrimination, highlights possible exemptions and justifications, and considers particular age-related points that can arise with employee share schemes. The emphasis is on how arrangements are structured and administered, viewed through the lens of age-related risks. It does so without straying beyond the share scheme context. Age discrimination—the basic principles The Equality Act 2010 ( Eq A 2010) provides the legal framework governing age (as well as other forms of) discrimination. In essence, two types of unlawful age discrimination are relevant: direct discrimination and indirect discrimination. There are also distinct notions of harassment linked to age and victimisation connected to age...

CASE HUB See further, timeline. Case facts Outline A Belgian reference seeks clarification on whether certain FIFA provisions on the Status and Transfer of Players are compatible with Articles 45 and 101 TFEU. Latest developments On 30 April 2024, Advocate General Szpuanr issued an opinion suggesting that aspects of FIFA’s transfer rules might be incompatible with EU law. These rules are restrictive in nature and can only be justified in particular circumstances. Parties Applicants: Federation Internationale de Football Association ( FIFA) Defendants: BZ Markets Football Background to reference Background FIFA is the governing regulator for football. Its purpose is to draft and apply rules for the sport and related matters, and to secure their enforcement. Under FIFA’s statutes, a national association charged with organising and supervising football within a country may join FIFA provided, inter alia, it is already a member of one of the six continental...

Aftermarkets Aftermarkets matter greatly to producers of sophisticated technical equipment and to businesses following a ‘razors and razor blades’ commercial model. Competition concerns in aftermarkets are not limited to a single sector. While many disputes feature the technology industry, similar issues have appeared across a broad range of other fields. a primary product (eg equipment, hardware or software), and an aftermarket good or service (eg parts, repair services, or software support) The decisive arena is the downstream aftermarket, which frequently delivers highly profitable, repeat revenues coveted by proprietary equipment manufacturers as a way to recoup significant research and development spend. Independent service organisations ( ISOs) and other third parties offering rival aftermarket goods or services often clash with manufacturers. Producers may seek to avoid enabling ISO competition, while ISOs operating solely in the aftermarket may view competition from...

Affordable housing Affordable housing refers to homes offered to people struggling with housing costs whose needs are not satisfied by the open market. It can take a range of forms, but whatever the model, it is always made available at below market price and delivered either by local planning authorities ( LPAs) or approved registered providers. The government funds part of new affordable supply mainly through its delivery agency, Homes England (see: Role of Homes England below). However, a substantial share is secured through the planning system from private developers. LPAs are obliged to ensure their local plans address requirements for both market and affordable homes. When an LPA identifies an affordable housing need, it should set policies that require market-led schemes to include a defined proportion of affordable homes—policy commonly starts at around 30%—which will usually be sold to, and managed by,...

Offence of the sale of aerosol paint to persons aged under 16 Selling an aerosol paint container to anyone under 16 constitutes an offence under section 54 of the Anti-social Behaviour Act 2003 ( ASBA 2003). For these purposes, an aerosol paint container is a device that: holds paint kept under pressure, and is intended to release the paint as a spray The purpose of this offence is to cut the occurrence of criminal damage linked to acts of graffiti. See Practice Note: Criminal damage. Defences to offence under ASBA 2003, s 54 It is a defence for a person charged under ASBA 2003, s 54 to prove: that they took all reasonable steps to verify the buyer's age, and that they believed the buyer was not under 16 Where the sale was carried out by another individual, it is also a defence to show that the...

Charities and data protection It is plain that the details charities hold about donors and would-be donors are crucial, particularly for marketing purposes. They will likewise be required to maintain certain records on their employees and voluntary workers. As contemporary legislation now shapes how this data is kept and shared, charities must keep sight of their legal obligations in this area. Data protection is a broad area, but organisations in the sector should understand: the Data Protection Act 2018 ( DPA 2018) the Retained Regulation ( EU) 2016/679 ( UK GDPR) Privacy and Electronic Communications ( EC Directive) Regulations 2003, SI 2003/2426 The UK GDPR framework replaced the earlier regime under the General Data Protection Regulation, Regulation ( EU) 2016/679 ( EU GDPR), after Brexit. The DPA 2018 was first introduced mainly to give effect to aspects of the EU GDPR and EU rules on law...

Part of the deputy’s responsibility One duty of a deputy is to ensure P receives every state benefit they are entitled to. The OPG Deputy Standards, published in February 2023, set out actions a deputy should take on P’s behalf. Under Standard 4(a), a deputy must submit claims for any benefits P qualifies for within three months of the deputyship order being received. The deputy should also review P’s benefits at least once a year. The main benefits for which P is most likely to be eligible are considered in detail below. Although some state benefits are means-tested, if P’s resources stem from a personal injury damages award, and are managed by a deputy or trustees within a personal injury trust, those funds are ring-fenced and therefore cannot be counted in the assessment. Both the capital and any income produced by those funds should be...

The Financial Conduct Authority ( FCA) is the United Kingdom’s financial regulator, created by an Act of Parliament in 2013. Operating independently of government, it is accountable to HM Treasury and to the UK Parliament, and is funded through fees paid by the financial services industry. Role Responsible for conduct and prudential regulation of firms outside the Prudential Regulation Authority’s ( PRA) remit, such as solo‑regulated firms. Acts as the conduct regulator for insurers, deposit takers and certain systemically important investment firms that are also regulated by the PRA (dual‑regulated firms). Regulates consumer credit and claims management companies, and oversees the UK’s financial markets. Supervises authorised firms, ensures adherence to financial rules, and undertakes enforcement against non‑compliance. Has powers to issue fines, revoke authorisations, approvals and permissions for particular activities, and prosecute offences under the Financial Services and Markets Act 2000 (...

Why you need to manage this risk The G20/ OECD Principles of Corporate Governance state that effective governance depends upon a reliable legal, regulatory and institutional architecture that market actors can trust when forming their private contractual arrangements. In the UK, multiple corporate governance frameworks exist, differing in strength and tailored to distinct business types. Some classes of company must adhere to specified frameworks or codes, whereas others elect to follow them voluntarily. Under the Companies Act 2006 ( CA 2006), directors of UK companies hold statutory obligations, and these duties are also receiving growing attention within the range of corporate governance codes in domestic use. This growing emphasis is reflected across the various codes currently in wide operation within the UK market today. A host of further laws may scrutinise or call into question an organisation’s governance, such as health and safety...

This Practice Note outlines the principal actions and matters a company must address and weigh up before beginning an application for an initial admission to trading on AIM, the market run by the London Stock Exchange ( LSE). Certain essential steps and considerations need to be undertaken by a company (company) ahead of starting the process of seeking an initial admission to trading on AIM ( AIM admission). Initial considerations The AIM admission timetable normally spans three to six months from the first all-parties meeting, and will demand a significant commitment of management time. Before embarking on this, it is vital that the company gives thoughtful consideration to: raising capital; improving liquidity in the company’s shares; enabling incentivisation of employees; raising the company’s profile. and whether this route is suitable for the company in its particular...

Overage is a promise or contractual duty on the purchaser to pay the seller an additional sum, over and above the original price, if a defined event takes place. Clients should be made aware that receiving this extra payment is far from guaranteed. For example: the relevant trigger may not occur within the agreed overage period the local authority’s development plan for the site, or other property-related circumstances, may alter over time even if the trigger occurs, the purchaser may simply fail to pay the seller the purchaser could become insolvent in the meantime At the outset At the outset (i.e. when the heads of terms are circulated), assess whether overage is suitable for the transaction. How likely is it that the overage will be activated within the expected period? If activation is virtually certain, a more fitting approach may be to...

The need for a licence to play music—copyright-protected works Copyright safeguards certain categories of work from unauthorised, chiefly commercial, exploitation. When music is played on business premises, the following kinds of protected works are applicable: music (musical works) lyrics of songs (literary works) recordings of songs or music (sound recordings) radio or television ( TV) broadcasts The rightsholder in any of these works may control commercial use by either prohibiting it or by licensing third parties, for a fee, to play or perform the works in public. Music A ‘musical work’ is a ‘work consisting of music, exclusive of any words or action intended to be sung, spoken or performed with the music’. For musical copyright to subsist, there are three key ingredients; first, it must comprise ‘music’. Music is distinguished from ‘mere noise’ as a combination of sounds intended for...

At present, several legal forms suit a charitable body, with the principal options being: a trust an unincorporated association a company limited by guarantee a charitable incorporated organisation Other possibilities include: a company incorporated by Royal Charter a statutory corporation a company limited by shares an industrial and provident association a friendly society community interest company Over time, the newer charitable incorporated organisation ( CIO), created by Part 11 of the Charities Act 2006 ( CA 2006), is expected to supplant the company limited by guarantee as a preferred route, as it shares that model’s benefits yet falls solely under the Charity Commission ( CC). When selecting a structure for the charity, the CC provides a useful guide: Charity types: how to choose a structure. Incorporated v unincorporated It should be understood that incorporated and unincorporated bodies differ in important ways, and recognising these distinctions is essential when choosing an appropriate structure for the charity...

French Forced Heirship ( Réserve héréditaire) The concept of Forced Heirship under French Law Forced heirship (réserve héréditaire) is a doctrine particular to French law. It identifies the compulsory share of an estate that the law preserves for certain heirs, termed héritiers réservataires. If the deceased had children, only the children qualify as forced heirs, regardless of marital status. Where the deceased was married with no children, the surviving spouse becomes a forced heir. Other forms of union, including civil partnerships such as a pacte civil de solidarité ( PACS), do not confer automatic succession rights. The remainder once the forced shares have been set aside is the quotité disponible. This part can be freely left by will or transferred by a gift made during lifetime to any person, whether related to the deceased or not. Contrast with English Law English law is founded on the principle of...

This Practice Note examines the matters connected to religious observance and festivals. It reviews the principal religious festivals and the kinds of issues observance may create in the workplace, including requests for leave, particular dietary and fasting needs, and workplace celebrations, as well as associated events and customs within teams too. It also looks at policies concerning religious observance at work. Relevant legal protections It is sensible practice for employers to recognise issues arising from employees’ religious observance, including those linked to religious festivals, as such awareness can help employers avoid risks that might result in legal liability if mishandled. The principal statutes employers should bear in mind are the Equality Act 2010 ( Eq A 2010) and the Employment Rights Act 1996 ( ERA 1996). Discriminatory conduct could also amount to a breach of contract, with potential liability for...

Elderly clients often approach their professional advisers for guidance on passing their home to family members, either outright, or so that they divest ownership yet continue to live there. The former route is comparatively straightforward but frequently unwise, whereas the latter can spawn numerous complications. Interests in land encompass freehold and leasehold holdings. Leasehold is typically taken to refer to a long lease that resembles full freehold control in day‑to‑day terms. That said, clients may on occasion wish to hand on different forms of shorter tenancy as well. A home is usually the client’s most significant possession, both financially and emotionally. In certain situations, owning property can undermine claims to benefits the client believes ought to be available; conversely, ownership may be central to the client’s ongoing independence. Undeniably, anxiety about potential future care drives many older clients to try to keep the...

What do you say to a client facing a custodial sentence? When clients face the prospect of imprisonment, they may feel overwhelmed or daunted. This Practice Note serves as a speaking aid for practitioners advising adult clients at risk of custody. It signposts relevant, detailed guidance and helps practitioners explain to their clients what will occur if a custodial term is handed down. It should also be made clear that receiving a custodial sentence does not automatically mean immediate imprisonment. In particular, where a term of 12 months or less is imposed, the court is required to consider a statutory presumption in favour of suspending that sentence (subject to certain exceptions). For more information, see Practice Note: Sentences imposed following conviction— Suspended sentence order. Fundamental principles Detailed guidance on general principles applicable to all sentencing exercises can be found in these Practice...

This Practice Note offers guidance for lawyers acting for whistleblowers in criminal investigations. For employment law aspects of whistleblowing, see: Whistleblowing—overview and, in particular, the Practice Notes: Entitlement to claim whistleblowing, Whistleblowing—protected disclosures, and Whistleblowing defences and exceptions. Advice on responding to a whistleblower when representing a company or organisation is set out in Practice Note: Dealing with a whistleblower in internal criminal investigations. To blow the whistle or not to blow the whistle? Employees who choose to speak up are protected under the Employment Rights Act 1996 ( ERA 1996) where the disclosure is a ‘protected disclosure’. For further detail on the statutory regime and what amounts to a ‘protected disclosure’, see Practice Note: Whistleblowing—protected disclosures. For those working in financial services, safeguards exist to ensure individuals raising ‘reportable concerns’ are not victimised. For more, see Practice Note:...

Practice Note Please note that this Practice Note addresses the law as it presently applies in England. In Wales, the legal position is governed by the Social Services and Well-being ( Wales) Act 2014 together with its associated statutory instruments. For further reading and detail, see the Practice Note: Local authority duties to looked after children in Wales. This Note aims to support practitioners in understanding local authority obligations towards children and young people who may qualify for advice and assistance, i.e. relevant children. The material will be of use to practitioners who: act on behalf of local authorities represent parents or guardians in care proceedings involving a child aged 16 or 17 advise looked after young people about the duties owed to them by the local authority advise on, or prepare for, judicial review of a local authority for failing to fulfil their duties under the...