In the context of the Bribery Act 2010, a commission is the giving of a financial advantage, although it is not necessarily a bribe.
All commissions constitute the giving of a financial advantage, although they will not necessarily be bribes.Commissions may be facilitation payments, where the commission is paid for the performance (or faster performance) of an existing duty (see Practice Note: Facilitation payments under the Bribery Act 2010).If a commission is a facilitation payment, it will be unlawful. The Serious Fraud Office (SFO) has said it will prosecute where the Code for Crown Prosecutors, Full Code Test is met; that is to say there is a realistic prospect of conviction on the evidence, and it is in the public interest to do so.How a commission might become a bribeThere are a number of potentially significant areas of risk for commission payments. Examples include:The art marketIn the art market, a common practice has been the payment of commission to intermediaries owing a duty of trust to an art collector in return for the opportunity to deal with or add to the collection. Such commissions have typically been paid without the knowledge or consent of the art collector. The payment of such commissions (even where the intermediary is based outside the UK) would be unlawful under the Bribery Act 2010 (BA 2010) if a tribunal found the intention was to obtain business (that would not otherwise be obtained) by way of the commission.InsuranceIn the
An agent is a person who performs services for or on behalf of a commercial organisation. The use of agents will principally create risk under the Bribery Act 2010, s 7 (BA 2010), (failure of a company to prevent bribery).See Failing to prevent bribery.Commercial organisations are:•bodies incorporated under the law of any part of the UK that carry on a business anywhere•any other bodies corporate that carry on a business or part of a business in any part of the UK•partnerships formed in the UK that carry on a business anywhere, or•partnerships formed anywhere that carry on a business or part of a business in the UKBusiness includes a trade or profession.How an agent may put a commercial organisation at riskAn agent is a person who performs services for or on behalf of a commercial organisation. Agents are therefore associated persons within the meaning of BA 2010 (in force since 1 July 2011).Whether a person is an agent is to be determined by reference to all the relevant circumstances and not merely the nature of the relationship between the two parties. Note that subsidiaries and employees may all be associated persons.If an agent bribes another person intending to obtain or retain business, or an advantage in the conduct of business for the commercial organisation, the commercial organisation will
The Bribery Act 2010 (BA 2010) was passed to ensure the UK’s compliance with the Organisation for Economic Co-operation and Development's (OECD) Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and came into force on 1 July 2011. It is designed to provide an effective legal framework to tackle corruption in both the public and private sectors, modernising the UK’s anti-corruption legislation and replacing the Prevention of Corruption Acts 1889–1916. For detailed guidance on historic anti-corruption law, see Practice Notes: Corruption and common law bribery—pre-Bribery Act 2010 [Archived], Pre BA 2010 bribery and corruption—Practicalities [Archived] and Pre-Bribery Act 2010 corruption—sentence tracker.BA 2010 has major implications for any business that is incorporated or trades in the UK. It applies to bribery committed by it, or on its behalf, anywhere in the world.Offences under the Bribery Act 2010BA 2010 criminalises four distinct types of conduct (offences):•bribing another person•soliciting or accepting a bribe•bribing a foreign public official, and•(for a business only) failing to prevent briberyCommon to each of these offences are:•a (financial or other) advantage is given, promised or requested, and•there is improper performance of a function or activityBribing another personBA 2010 criminalises bribery by a person when that person, ‘A’, offers, promises or gives a financial or other advantage to another person,
The Payment Accounts Directive (Directive 2014/92/EU) (PAD) is intended to enhance transparency and comparability for consumers in respect of payment accounts. In particular, the PAD: • makes it easier for consumers to compare fees charged by banks and other service providers across the EU • facilitates consumer switching of payment accounts, and • entitles all EU consumers to open a payment account that enables them to perform essential functions such as receiving their salary and paying bills The PAD has its origins in the European Commission's consultation on retail bank accounts, opened in March 2012, which assessed the need for action in the areas of transparency and comparability of fees, account switching and access to basic payment accounts. This followed a retail banking sector inquiry in 2007 which had identified these factors as obstacles to consumer choice and mobility. Member States' subsequent attempts to tackle the problems at a national level had led to a lack of uniformity across the EU to the detriment of the single market. The consultation suggested some consumer appetite for legislation at the EU-level while the industry generally was less persuaded of the need for new EU legislation. The PAD, which clearly targets the problems identified in the consultation, was published in the Official Journal of the EU on 28 August 2014, and entered into force on 17 September 2014. Member
Charitable schemes Schemes are a distinctive feature of charity law. A scheme may be: • a cy-près scheme which involves altering a charity’s purposes, or • an administrative scheme which alters its administrative provisions A scheme may be made: • by the Attorney General under the Royal Sign Manual where no trust exists, or • otherwise, by either (a) the Charity Commission or (b) the Court Different types of schemes Administrative scheme The court has an inherent equitable jurisdiction to regulate the administration of a charity without altering its purposes by way of an ‘administrative scheme’. An example of this type of scheme is provided by J. W. Laing Trust. This related to a scheme enabling the trustees for the time being to be discharged from an obligation to distribute capital within 10 years of the settlor’s death in exercise of the inherent jurisdiction of the court, with Peter Gibson J finding that the requirement was ‘inexpedient in the very altered circumstances of the charity’. The jurisdiction arises as ‘a branch of the court’s inherent jurisdiction in relation to trusts… [and] charity trustees’ Cy près scheme The court has a statutory jurisdiction to alter the purposes of a charity by way of a cy-près scheme. This jurisdiction arises in the circumstances listed in section 62(1) of the Charities Act 2011 (ChA 2011)). An alteration of the original purposes of a charitable trust can only be achieved
The unfair dismissal compensatory award An award of compensation for unfair dismissal generally consists of a basic award and a compensatory award. The compensatory award is intended to compensate the employee for financial losses suffered as a result of the unfair dismissal. It may be subject to various increases or deductions. The basic award is considered in Practice Note: The basic award. For guidance on unfair dismissal remedies generally, see Practice Note: Unfair dismissal remedies—general. See also the Lexis®Calculate online calculators: • basic award calculator, and • Lexis®Calculate Employment: unfair dismissal schedule of loss application (and the related Practice Note: Guide to using the Lexis®PSL Employment Schedule of Loss application) Calculation The compensatory award is such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the employee as a result of dismissal and in so far as that loss is attributable to actions of the employer. It is intended to compensate the employee rather than to punish the employer or give a gratuitous benefit to an employee for whom the tribunal feels sympathy. No account should be taken of any period during which losses are caused by something other than the dismissal. In ascertaining the claimant's loss, the employment tribunal must apply the same rule concerning the duty of a person to mitigate their loss as applies to damages recoverable under the common law.
Brexit timeline On 23 June 2016, the UK held a referendum on its membership of the EU, with a majority voting in favour of the UK leaving the EU. On 29 March 2017, the UK Prime Minister gave formal notification of the UK's intention to withdraw from the EU, commencing the withdrawal process under Article 50 TEU. At 11 pm on 31 January 2020 (exit day), the UK’s formal withdrawal from the EU took effect and the UK ceased to be an EU Member State. Exit day marked the end of the withdrawal period under Article 50 TEU and the start of a time-limited transition/implementation period, during which the transitional arrangements provided in Part 4 of the Withdrawal Agreement applied. The transitional arrangements provided a standstill period during which the UK and EU worked to implement the Withdrawal Agreement and negotiate an agreement on the legal terms of their future relationship, to take effect after the transition period. The EU-UK Trade and Cooperation Agreement (TCA) was agreed on 24 December 2020, one week before the transition period ended at 11 pm on 31 December 2020 (IP completion day). This Practice Note sets out a timeline of key events and updates (in reverse chronological order) in the post-transition period, focussing in particular on the implementation of the TCA and associated agreements, follow-up actions in respect of the Withdrawal Agreement
A guide to land registration and the sasine register in Scotland The Registers of Scotland The Registers of Scotland (ROS) is the Scottish Government Agency responsible for looking after a range of registers, most notably the register of sasines and the Land Register of Scotland which involve interests in land. It is headed up by the Keeper of the Registers of Scotland. Sasine register The register of sasines was established in 1617 by the Registration Act 1617 and is a public record of deeds relating to land in Scotland. Its purpose was to provide protection to rights in land by allowing such rights to be publicly recorded. The register is administered on a regional basis with deeds relating to rights in property being registered in the appropriate county register. Indexes of property and individuals were established allowing a degree of searching to be carried out to identify specific deeds which had been recorded. In 1876 sasine search sheets were established. These identify the volume and page numbers of all the deeds for a given building or piece of land and can be used as a starting point for searching back in time. The creation of search sheets made the ability to search for individual deeds much more accessible it also provided context against the property to the deed being recorded. The format of a search sheet is based on the principals
Spain behavioural investigations—closed cases tracker This table summarises all completed investigations by Spain’s competition authority (the National Commission on Markets and Competition—the CNMC) into alleged cartels, anti-competitive agreements and abuses of dominant positions (Articles 101/102 TFEU and national equivalents) since 2018. Note—only investigations that have been made public are included in this table. 2022 Investigations under Article 101 TFEU/Article 1 of the Spanish Competition Act Case name, companies under investigation and industry Issues Developments Construction• 6 undertakings (listed here) Restrictive agreements—bid rigging • Infringement decision announced—07/07/2022; fines totalling €203.6m imposed Procurators• College of Attorneys of Santa Cruz de Tenerife Restrictive agreements • Commitments accepted—28/04/2022 Scrap-iron• ArcelorMittal• Balboa• Sidenor Restrictive agreements—exchange of commercial information • Infringement decision announced—14/03/2022; fines totalling €24m imposed Investigations under Article 102 TFEU/Article 2 of the Spanish Competition Act Case name, companies under investigation and industry Issues Developments Power transmission network• Enel Green Concerns Enel Green abused its dominant position by ensuring its own renewable energy generation facilities were awarded greater access capacity to nodes, to the detriment of its competitors • Infringement decision announced—14/06/2022; fines totalling €4.9m imposed Dog breeding and showing• The Royal Canine Society of Spain (RSCE) Concerns RSCE abused its dominant position by restricting associations from accessing the international market and hindered judges from taking part in other organizations' shows • Infringement decision announced—26/05/2022; fines totalling €142,996 imposed Postal services• Correos Concerns Correos abused its dominant position by operating
MMF Regulation—essentials What is an MMF? Money market funds (MMFs) are open ended investment funds that are used in many jurisdictions as an important source of short-term financing for financial institutions, companies and governments. MMFs are seen as a low risk investment that helps investors diversify their credit risk. MMFs are types of investment funds that invest short-term debt such as money market instruments issued by banks, governments and companies. Such money market instruments include treasury bills, commercial paper and certificates of deposit. If their residual maturity does not exceed 397 days (a short-term MMF) or two years (a standard MMF), then the financial instruments will be eligible for an MMF. MMFs domiciled in the EU generally invest in debt denominated in euro, pound sterling or US dollar but they can be denominated in any currency. MMFs issue shares or units to investors in order to fund their investment activities. Due to their short-term nature, investing in MMFs is viewed as a substitute for a bank deposit. The potential risks associated with such investing is that MMFs are not covered by any bank deposit guarantee scheme and the value of the shares will fluctuate in line with the price of the debt instruments in which an MMF invests. An MMF generates income and investing in an MMF is often a temporary investment before the investor makes another
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Lease of whole building—hotel LR1. Date of the lease [date] LR2. Title Number(s) LR2.1 Landlord's title number(s) [title numbers out of which this lease is granted. Leave blank if not registered] LR2.2 Other title numbers [existing title number(s) against which entries of matters referred to in LR9, LR10, LR11 and LR13 are to be made] LR3. Parties to this lease Landlord [name of Landlord] [of OR incorporated in England and Wales with company registration number [number] whose registered office is at] [address] Tenant [name of Tenant] [of OR incorporated in England and Wales with company registration number [number] whose registered office is at] [address] Other parties [ Guarantor [[name of Guarantor] [of OR incorporated in England and Wales with company registration number [number] whose registered office is at] [address]] [details and specify capacity of other parties (eg management company etc)]] LR4. Property In the case of a conflict between this clause and the remainder of this lease then, for the purposes of registration, this clause shall prevail. The Property as defined in clause 1. LR5. Prescribed statements etc LR5.1 Statements prescribed under rules 179 (dispositions in favour of a charity), 180 (dispositions by a charity) or 196 (leases under the Leasehold Reform, Housing and Urban Development Act 1993) of the Land Registration Rules 2003. [None. OR [applicable prescribed statement]. OR See clause [relevant clause reference].] LR5.2 This lease is made under, or by reference to, provisions of: Not applicable. LR6. Term for which the
Lease of a rooftop area to an electronic communications operator—new code HM Land Registry Prescribed Clauses [ LR1. Date of the lease [date] LR2. Title Number[s] LR2.1 Landlord’s title number [s] [title numbers out of which this lease is granted. Leave blank if not registered] LR2.2 Other title numbers [existing title number(s) against which entries of matters referred to in LR9, LR10, LR11 and LR13 are to be made] LR3. Parties to this lease Landlord [name of Landlord] [of OR incorporated in England and Wales with company registration number [number] whose registered office is at] [address] Tenant [name of Tenant] [of OR incorporated in England and Wales with company registration number [number] whose registered office is at] [address] Other parties None LR4. Property In the case of a conflict between this clause and the remainder of this lease, for the purposes of registration, this clause shall prevail. The property described in Part 1 of Schedule 1 to this Lease.This Lease contains provisions relating to the creation or passing of easements — see clause 3.1, clause 3.4 and Part 2 of Schedule 1. LR5. Prescribed statements etc LR5.1 Statements prescribed under rules 179 (dispositions in favour of a charity), 180 (dispositions by a charity) or 196 (leases under the Leasehold Reform, Housing and Urban Development Act 1993) of the Land Registration Rules 2003 [None OR [applicable prescribed statement] OR See clause [relevant clause reference]]. LR5.2 This lease is made under, or by reference
Recognising crime—red flags and warning signs for staff—law firms You must remain alert to the red flags and warning signs of crime potentially taking place in our organisation. While you do not have to behave like a police officer, you must make the sort of enquiries that a reasonable person (with the same qualifications, knowledge and experience as you) would make. This awareness tool identifies typical red flags and warning signs that may indicate that our firm is involved in or is itself being used to commit crime (eg money laundering, terrorist financing, bribery, corruption, property or mortgage fraud or organised crime). These factors do not automatically mean that crime is taking place, but you should be aware of them and pay particular attention to matters where a number of factors are present. These red flags and warning signs would normally require further investigation. Methods for committing crime change all the time. We have set out below typical general red flags and warning signs, broken down into three categories: (1) the client, (2) the money, (3) the transaction and then signs to look out for in specific areas of work. The lists are not exhaustive. 1 The client Red flags and warning signs in relation to the client include where the client: —is excessively obstructive or secretive; —is a politically exposed person (PEP); —uses an intermediary, or does not appear to be directing
Share purchase agreement—pro-buyer—corporate seller—conditional—long form This Agreement is made on [insert day and month] 20[insert year] Parties 1 [Insert name of selling corporate entity] incorporated in [England and Wales OR [insert country of incorporation] OR with registered number [insert company number] whose registered office is at [insert address] (the Seller); 2 [Insert name of purchasing corporate entity] incorporated in England and Wales OR [insert country of incorporation] OR with registered number [insert company number] whose registered office is at [insert address] (the Buyer), and 3 [Insert name of guarantor entity] incorporated in England and Wales OR [insert country of incorporation]] with registered number [insert company number] whose registered office is at [insert address] (the Guarantor) [(each of the Seller, the Buyer and the Guarantor being a Party and together the Seller, the Buyer and the Guarantor are the Parties).] Background (A) The Company (as defined below) is a private company limited by shares and is incorporated in [England and Wales OR [insert country of incorporation]]. Details of the Company are set out in Schedule 1. (B) The Seller is the legal and beneficial owner of the Sale Shares (as defined below), being in aggregate the entire allotted and issued share capital of the Company. (C) The Seller has agreed to sell and the Buyer has agreed to purchase the Sale Shares on the terms of this Agreement. (D) The Guarantor has
Financial services outsourcing agreement (intra group) This Agreement is made on [insert date] Parties 1 [Insert name of party] a company incorporated in England and Wales (under number [insert registered number ]) whose registered office is at [insert registered address] (the Service Provider) and 2 [Insert name of party] a company incorporated in England and Wales (under number [insert registered number]) whose registered office is at [insert registered address] (the Firm) (each of the Service Provider and the Firm being a Party and together the Service Provider and the Firm are the Parties) Recitals: (A) The Firm is an [insert, eg investment management and advisory firm] and is authorised and regulated by the authority'>Financial Conduct Authority (FCA) (B) The Firm is a wholly owned subsidiary of the Service Provider (C) The Parties have decided to enter into this Agreement to document those operational functions which are being outsourced to the Service Provider and which are, in the opinion of the Firm, important or critical to compliance by the Firm with the conditions and obligations of its authorisation or its other obligations under UK law on markets in financial instruments, or its financial performance, or the soundness or the continuity of its investment services and activities. 1 Definitions 1.1 In this Agreement, unless otherwise provided: Agreed Service Levels • means the service levels set out in Schedule 2 to this Agreement; Applicable Law • means any law, rule,
Report on title—long form Property: [insert name and/or address of the Property] (‘Property’) Purchaser: [insert name, address and (if applicable) company registration number of buyer] Transaction: [insert brief details] 1 Executive summary 1.1 Scope of report This report is addressed to you [insert buyer’s name] and has been prepared for your sole benefit in connection with your proposed acquisition of the Property. This report may not be disclosed to or relied upon by any other party without our prior written consent. 1.2 [ Good and marketable title We are of the opinion that, subject to the matters referred to in this report, upon completion of the purchase of the Property, payment of [ stamp duty land tax OR land transaction tax] and registration at HM Land Registry, you will obtain a good and marketable title to the Property.] 1.3 Areas of concern [Insert any concerns about the Property arising from your due diligence]. [Title indemnity insurance [has been OR will be] obtained in respect of [insert details of title defect which has been/will be insured against]. The indemnity insurance policy provides cover up to a maximum of £[insert amount] for a period of [insert period of cover] against [insert risks covered].] [[Insert any other relevant information and advice about the policy.]] 2 Transaction summary and key terms [You have informed us that this is an investment purchase and this report is based on the assumption that you will continue to use the
Anti-bribery and corruption—briefing for external agents/intermediaries Introduction Compliance with bribery and corruption laws is critical to [insert organisation name][ and all its businesses]. To raise awareness, protect our reputation and avoid potential liability as a result of bribery or corruption involvement by any of our business partners we provide this briefing to all agents and intermediaries. As a partner, agent, consultant or other third party engaged to provide services for or act on behalf of [insert organisation name], you are an ‘associated person’ under the Bribery Act 2010 (BA 2010). As such, we can be held accountable for the actions you take on our behalf. It is therefore imperative that you: • understand and follow the same laws and policies that apply to us and our staff • recognise when bribery risks arise and know how to behave appropriately and in accordance with our policies in such situations • make it clear to others that you and [insert organisation name] do not conduct business in an unethical manner, and • take steps to reduce the risk of unwittingly committing bribery Violations of bribery laws are criminal offences and carry severe penalties for companies and individuals. They can lead to liability for us and for you and as such constitute grounds for immediate termination of our contract with you. By following our policies you can help ensure compliance with anti-bribery and corruption laws. This briefing will help
Representative of an Overseas Business: settlement application—additional checklist A. Additional documents for all main applicants Evidence of your employment for the last 12 months. This could include:—payslips—bank statementsPayslips should be either:— printed on company-headed paper showing the employer’s name, or—printouts of online payslips Your bank statements should show a full breakdown of your pay, including salary payments and any commission. Personal bank or building society statements should be either:—statements on bank stationery—ad hoc statements printed on the bank's letterhead (excluding mini-statements from Automatic Teller Machines (ATMs)), or—printouts of electronic statementsAll statements should include the following details:—your name—account number—date of the statement—the financial institution’s name, contact details and a branch code, and—any transactions over the periodThe last document should be dated no more than 31 days before the application. Some of this information will also be provided in a letter from your employer (see below).The format of documentation may vary depending on the country where you have your employment contract. There is some flexibility allowed in the format of payslips and evidence of documents from financial institutions—if your existing documents are not in the format suggested, please contact us for further advice as to whether they are acceptable. Your current job description For any absences from the UK over the qualifying period due to a serious or compelling reason: a personal letter from you
Legal due diligence questionnaire—private M&A—share purchase Dated [insert date] Introduction This legal due diligence questionnaire relates to the proposed purchase by [insert buyer name] (the Buyer) of the entire issued share capital of [insert name of target company] Limited incorporated in England and Wales under number [insert company number] (the Company) from [insert seller name] (the Seller) (the Proposed Acquisition). This questionnaire is designed to enable the Buyer, the Buyer's solicitors and other professional advisers involved in the Proposed Acquisition to obtain the information which the Buyer requires to assist in its valuation of the Company. Please answer every question fully. Please provide your answers in italics underneath each question and provide copies of all relevant documentation, ensuring that all answers and documents are clearly marked by reference to the appropriate paragraph of this questionnaire. We reserve the right to raise further enquiries in respect of both your responses to this questionnaire and generally. Definitions Business • means the business of [insert description of the business] and all other activities including those ancillary or incidental to or in connection with such business as carried on by the [Company OR Group] CA 2006 • means the Companies Act 2006; Contractor • means any individual working in a Group Company’s business who is not an Employee or Worker; Data Protection Laws • means as applicable and binding on the Company: (a) Directive 95/46/EC; (b) the Data Protection Act 1998; (c) Directive 2002/58/EC;
Preferred supplier agreement (goods)—pro-customer STOP PRESS: The Retained Vertical Agreements Block Exemption, Retained Regulation (EU) No 330/2010 (UK VBER) expires on 31 May 2022. On 9 May 2022, the UK Government laid before Parliament The Competition Act 1998 (Vertical Agreements Block Exemption) Order 2022 (UK VABEO). The UK VABEO will replace the UK Retained VBER on 1 June 2022. See Practice Note: UK block exemptions revision—tracker. The EU Vertical Restraints Block Exemption, Regulation (EU) No 330/2010 (outgoing EU VBER) expires on 31 May 2022. On 10 May 2022, the European Commission adopted the EU Vertical Restraints Block Exemption, Regulation (EU) No [ref]/2022 (new EU VBER) and Vertical Guidelines that will replace the outgoing EU VBER on 1 June 2022. See Practice Note: EU block exemptions revision—tracker. This Precedent reflects the requirements of the outgoing block exemptions until 31 May 2022. It is under review and will be updated to reflect the requirements of the new block exemptions in due course. This Agreement is made on [date] Parties 1 [insert name of supplier] [of OR a company incorporated in [England and Wales] under number [insert registered number] whose registered office is at] [insert address] (Supplier); and 2 [insert name of customer] [of OR a company incorporated in [England and Wales] under number [insert registered number] whose registered office is at] [insert address] (Customer), each of the Supplier and the Customer
Dive into our 283 Precedents related to Commission
How will charities ensure that they are properly governed if trustees and staff are not able to work or meet in light of coronavirus (COVID-19)? Many charities will have board or general meetings scheduled over the coming months and be wondering what steps should be taken to observe social distancing measures and protect attendees, particularly those more at risk from coronavirus (COVID-19). Special rules apply to these meetings and will need to be taken into account. Formal meetings are, of course, only one (albeit an important) aspect of a charity’s operations. Outside formal meetings, staff may be able to work and meet remotely in order to keep services going. Where this is not possible, difficult decisions may have to be made about how best to protect a charity’s beneficiaries and reputation until restrictions around movement are eased. This Q&A is principally directed to charities which are structured as companies. Board decisions: one-off decisions where a meeting cannot be held If a decision is needed at short notice on a specific matter and the trustees are all in agreement, they may act informally where they are unanimous. This has been interpreted by the courts to mean that an agreement signed by all the directors of a company on different dates, and not as a board, is a contract binding the company. By analogy, a decision approved over email by all the trustees
Does an employee who has taken unpaid leave accrue holiday entitlement during that period; and do periods of unpaid leave or long-term sickness absence affect the amount of holiday pay an employee should receive? The right under the Working Time Regulations 1998 (WTR 1998) is to a total of 5.6 weeks' annual leave each 'leave year', made up of: • a basic entitlement to a minimum of four weeks' annual leave (20 days for a regular full-time worker) each leave year, implementing the right to annual leave under the Working Time Directive • an additional entitlement to 1.6 weeks' annual leave (eight days for a regular full-time worker) each leave year, which is a right under domestic legislation only For further information, see Practice Note: Holiday — Statutory holiday entitlement. The right to annual leave under WTR 1998 is a right to paid leave (see below for further observations in this regard). If (which seems likely in the case of a day here and there as unpaid leave) the contract continues during those days of unpaid leave, the employee will continue to accrue their 5.6 weeks' annual leave; entitlement under WTR 1998 accrues by virtue of the individual's status as a worker, and is not dependent on the employee actually physically being at work. Where an employee takes a period of ‘other’ leave (which does not involve a contractual break) such as
If a public body (eg HMRC) fails to reach a decision within a reasonable timeframe where no specific deadline applies, could this be grounds for judicial review? At what point does the 'failure to act' occur? This Q&A considers whether grounds for judicial review could be established if a public body (such as HMRC) delays or fails to reach a decision within a reasonable timeframe where no specific deadline applies. Claims for Judicial review CPR 54.1 states that a 'claim for judicial review' means a claim to review the lawfulness of an enactment or a decision, action or failure to act in relation to the exercise of a public function. Judicial review is generally a remedy of last resort, where there is no alternative remedy (for authority in the context of Tax, see: R v Epping and Harlow General Commissioners ex parte Goldstraw). Permission to commence judicial review proceedings will not be granted if there is an adequate alternative remedy. In a Tax context, it may be beneficial to first consider whether an application can be made to the First-tier Tribunal for a closure notice. A closure notice requires HMRC to bring a formal end to an enquiry. For further information, see Obtaining a closure notice: A Practical Guide to Tax Appeals. Judicial review proceedings can be brought against a public body, including HMRC. HMRC may be subject to judicial
Should the calculation of statutory holiday pay include an element of annual bonus based on company performance and/or quarterly bonus based on achievement of individual targets or goals? Different methods of calculating statutory holiday pay apply, depending on whether the worker in question has 'normal working hours', or 'no normal working hours'. For further information, see Practice Note: Holiday pay, in particular the sections headed: • ‘Calculating statutory holiday pay: no normal working hours’ • ‘Calculating statutory holiday pay: normal working hours’ If there are no normal working hours, a week's pay is calculated as the average weekly remuneration (including commission and bonuses) over the previous 12 complete weeks. Weeks in which no remuneration is earned (eg because the worker does not work every week) do not count for the purposes of this calculation: instead, it is necessary to count backwards from the calculation date and count only those weeks in which remuneration is earned, until 12 such weeks are taken into account. Therefore, if the worker has no normal working hours, the bonus or commission over the relevant period will always be taken into account. Where the worker has normal working hours, the Employment Rights Act 1996 (ERA 1996) provides that commissions and bonuses must be taken into account in calculating a week's pay if the worker's pay varies with the amount of work done. However, in Lock v British Gas Trading,
Is a woman on maternity leave entitled to receive a payment based on the average commission she would have received during the maternity leave period had she been at work and earning commission on deals she (or her team) completed during that period? An employee who takes ordinary or additional maternity leave is entitled to the benefit of all the terms and conditions of employment that would have applied had she not been absent, except ‘terms and conditions about remuneration’. For further information on an employee’s rights during maternity leave, see the section of Practice Note: Maternity leave entitled ‘Rights during ordinary and additional maternity leave’. When determining whether or not the employer is obliged to continue honouring a particular contractual term during maternity leave, it is therefore crucial to decide whether or not that term is ‘about remuneration’ as, if it is, the employee has no entitlement to benefit from it while on that leave. For these purposes, a sum payable to an employee will only be treated as remuneration if it is payable ‘by way of wages or salary’. There is no
There is a restrictive covenant noted on a registered title, and the covenant was created in 1966 before registration of the land in 1980. If a land charges search reveals that the covenant is not registered as a class D(ii) land charge against the original covenantor, does that mean it should never have been noted on the registered title and is not enforceable? What is the limitation period for enforcement of restrictive covenants? Land charges Where, as here, a restrictive covenant is contained in a post-1925 conveyance or deed, it would need to have been protected by the entry of a D(ii) land charge against the relevant estate owner(s) for it to be binding on successors-in-title. If it was not properly protected, the covenant is unenforceable, even though a note of it has been entered in the charges register on subsequent first registration of the title However, a restrictive covenant that is unprotected by registration may still be binding on an estate owner where there has been no intermediate purchase for money or money's worth of the legal estate (which would be the case if the registration in 1980 was voluntary and there has been no subsequent disposition of that estate). For further information, see: • Practice Note: Restrictive
Am I allowed to pay or receive a commission under anti-bribery legislation? Please note, this Q&A only considers UK bribery legislation. Payment of commissions We refer you to Practice Note: Commission, which outlines how all commissions constitute the giving of a financial advantage, although they will not necessarily be bribes. The Bribery Act 2010 (BA 2010) has a broad interpretation of what may constitute a bribe. It is described as a 'financial or other advantage' given or received in a business context, which constitutes or induces the improper performance of a relevant function or activity. Performance will be ‘improper’ if it breaches a relevant expectation of good faith or impartiality. The general offences under the BA 2010 therefore will often capture the payment of commission, though this will vary among industry. For example, in the art market, a common practice has been the payment of commission to intermediaries owing a duty of trust to an art collector in return for
Are you aware of any databases for: (i) a European regulatory body for medical devices for human application from which technical information about devices seeking approval can be obtained, (ii) obtaining a copy of the application if a medical device manufacturer has applied for authorisation for use in Europe? In the US, medical device manufacturers must submit a detailed application to the Food and Drug Administration (FDA). The application to the FDA is referred to as ‘510K’ filing. Is there a European equivalent where such information can be found? Unlike in the US, medical devices in the EU do not go through pre-market approval as such. Instead, in order to be placed on the market in the EU, all medical devices must meet the ‘essential requirements’ set out in the relevant MD Directive. Depending on the risk classification of the device, the assessment of whether the essential requirements have been met is carried out by the manufacturer or may involve an independent accredited certification organisation, known as a Notified Body. This is known as the conformity assessment procedure. Following the conformity assessment procedure, the EU Declaration of Conformity is drawn up by the manufacturer and the CE mark affixed to the device. Once the CE mark has been affixed, the device can be circulated freely on the
Where a charity has changed its name and merged with another, how do I deal with a legacy to the original charity where the will contains no substitution clause? See commentary from: Charity has ceased to exist: Tolley’s Charities Manual [3A.22], the general rule is that where a charity has been wound up before the testator’s death, a legacy will lapse, unless a charity merger has been registered with the Charity Commission. Tolley’s Charities Manual further states that: ‘Re Stemson's Will Trusts  Ch 16 is authority for the proposition that, where a charity is terminated under a power in its own constitution and its assets are disposed of, the charity ceases to exist and the doctrine of lapse will apply. The gift will only be saved from lapse if a general charitable intention can be established. In that event,
Is a purchaser of a business liable to a commercial agent of the seller of that business if the agency agreement is terminated prior to completing the business transfer? For the purposes of this Q&A, we have focussed on the contractual arrangements and allocation of liabilities stemming from the business transfer. Commercial Agency Regulations 1993 Our Practice Note: Termination of commercial agency considers the regulations governing the termination of commercial agencies (as defined in the Commercial Agency Regulations (CAR 1993)) and looks at when the right to indemnity or compensation does or does not exist in general. CAR 1993, reg 17 deals with the entitlement of commercial agent to an indemnity or compensation on termination of an agency contract. In particular, reg 17 (6)–(9) states the following: (6) Subject to paragraph (9) and to regulation 18 below, the commercial agent shall be entitled to compensation for the damage he suffers as a result of the termination of his relations with his principal. (7) For the purpose of these Regulations such damage shall be deemed to occur particularly when the termination takes place in either or both of the following circumstances, namely circumstances which— (a) deprive the commercial agent of the commission which proper performance of the agency contract would have procured for him whilst providing his principal with substantial benefits linked to the activities of the commercial agent; or (b) have not enabled
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EU Law analysis: Regulation (EC) No 1223/2009 on Cosmetic Products (the EU Cosmetic Products Regulation) is the main regulatory framework for finished cosmetic products placed on the EU market. In line with its Chemicals Strategy for Sustainability, which aims to boost innovation for safe and sustainable chemicals and to address the health and environmental challenges caused by the most harmful chemicals, the European Commission launched a public consultation regarding proposals for the targeted revision of the EU Cosmetic Products Regulation on 28 March 2022. The Commission intends to use the inputs received from this consultation to assess the relevance of proposed new measures to improve the safety and sustainability of cosmetic products. The consultation was open until 20 June 2022, and sought input on several issues, including expanding the default prohibition of the use in cosmetic products of a broader range of chemicals, updating risk assessment requirements, and refining cosmetic product labelling requirements. Input from the consultation and stakeholder workshops will help to shape the Commission’s formal proposals for revision of the EU Cosmetic Products Regulation, which are expected to be published in late 2022. Andrew Austin, Rachel Duffy and Xavier Chitnavis of Freshfields Bruckhaus Deringer LLP consider each of the Commission’s proposals to revise the EU Cosmetic Products Regulation in detail, including the impact that any changes could have on cosmetic product businesses with operations in the UK.
A round-up of EU competition law developments, including (amongst other things) the latest Commission decisions under the EUMR and EU State aid rules.
A round-up of EU competition law developments, including (amongst other things) the latest EURM developments.
MLex: The European Commission says its revamped Code of Practice on Disinformation is not designed for censorship—but that could still be the outcome if there is overzealous implementation.
This week's edition of Environment weekly highlights includes analysis on Perfluoroalkyl and Polyfluoroalkyl Substances, the judgment in R (on the application of New Earth Solutions (West) Ltd) v Environment Agency in which an application for judicial review of the Environment Agency’s decision to withdraw a consent for the transfrontier shipment of waste from the UK to Norway was refused, and the new NEC X29 clause for construction contracts. In addition, this week the Department for Business, Energy & Industrial Strategy announced a £635m fund to decarbonise energy in public buildings, the Department for Environment, Food & Rural Affairs opened a consultation on biodiversity metric for measuring biodiversity net gain, the Welsh Government confirmed it will introduce a Bill on single-use plastic, and the UN General Assembly recognised clean and healthy environment as a universal human right.
This week’s edition of Information Law weekly highlights includes news that the European Commission faces legal action for illegal data transfers to the US. It also includes news of Google’s announcement that it has expanded the Privacy Sandbox testing window and further delayed the phasing out of third-party cookies in Chrome, analysis of the effect of the Bill of Rights Bill on reputation management claims, and news of other recent developments relating to data protection, ePrivacy and cybersecurity.
This week's edition of Commercial weekly highlights includes: analysis of the High Court judgment in Euler Hermes v Mackays Stores Group considering the termination of a guarantee, analysis of the Court of Appeal judgment in Bank of New York Mellon v Cine-UK Limited Picture House Cinemas Limited v London Trocadero rejecting a tenants argument for an implied term in a lease to include damage due to COVID-19, news of a Court of Appeal decision in Candey Ltd v Bosheh which upheld that there was no implied duty of good faith and news of a High Court judgment in Canara Bank v MCS International Ltd challenging a courts jurisdiction pursuant to a guarantee.
A round-up of EU competition law developments, including (amongst other things) the latest Commission decisions under the EU merger and State aid rules.
Welcome to the 4 August 2022 highlights from the Immigration team, which provides links to key news stories from the last week, as well as a round-up of new and updated content in Immigration.
This week’s edition of Private Client highlights includes: (1) The Court of Appeal dismisses an appeal challenging the secrecy of the hearing concerning His Royal Highness Prince Philip, Duke of Edinburgh’s Will; (2) HMRC updates its Trust Registration Service Manual; (3) Hull City Council v KF, in which the Court of Protection held that a vulnerable woman lacked the capacity to consent to sexual relations with an abusive partner, applying a person-specific test for capacity to engage in sexual relations; (4) BEIS issues guidance on the Register of Overseas Entities which came into force on 1 August 2022; (5) HMRC publishes new compliance factsheets on facilitating avoidance schemes involving non-resident promoters; (6) The Law Commission consults on the proposed law reform on market use of digital assets; (7) Power v Bernard Hastie & Company Limited & Others, on a claimant’s right to provisional damages passes to their estate after death, and (8) The National Security and Investment Act 2021.
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