This edition of the Employment weekly highlights includes: (1) the government’s response to the Women and Equalities Committee’s report on miscarriage and bereavement leave, (2) an EAT judgment outlining the ways in which a third party contractor may be a respondent to employment claims despite there being no express or implied contract between the claimant and the contractor, (3) various regulations to implement neonatal leave and pay, (4) the Tribunal Procedure Committee’s consultation on changes to the Employment Tribunal Procedure Rules 2024, (5) dates for your diary, and (6) other news items of interest to employment practitioners.

This week's edition of Construction weekly highlights includes an analysis of the Employer’s power to issue instruction under the Joint Contracts Tribunal (JCT) Design and Build Contract, commentary on a Court of Appeal decision on the scope of remediation contribution orders under the Building Safety Act 2022 (Triathlon Homes v Stratford Village), publication of the British Standards Institution (BSI)’s Fire Risk Assessment – Housing – Code of Practice for residential buildings, an update on the Scottish Government's Compliance Plan Approach aimed at strengthening building safety standards in Scotland, a case in which the Technology and Construction Court (TCC) considered the scope of the residential occupiers exclusion in relation to adjudication (RBH v James), and the announcement of significant proposals by the Department for Business and Trade (DBT) to take action against late payment practices (which include measures relating to retentions in construction contracts).

This Checklist sets out the considerations and steps to be taken by a landlord, and relevant timescales or deadlines for those steps, once qualifying tenants have served a section 13 notice to collectively acquire the freehold of relevant premises under the Leasehold Reform, Housing and Urban Development Act 1993. These include service of a landlord’s section 21 counter-notice admitting or not admitting a claim and/or opposing the claim on the basis of intention to redevelop, and deadlines for an application to the First-tier Tribunal (or Leasehold Valuation Tribunal in Wales) for determination of terms if they cannot be agreed and/or the County Court in the event that the contract is not completed within the statutory deadline once terms have been agreed/determined. For guidance in respect of the steps to be taken by a tenant, see: Collective enfranchisement under LRHUDA 1993 (preparation and procedure) for tenants—checklist. • Ensure that the landlord responds to any requests made by the tenant for information about the freeholder and any intermediate leasehold

Note that additional commentary on the issues discussed in this Practice Note in the context of the regulation, consenting and incentivisation of the net zero energy transition is available in the following textbook that we have published: Collinson and Hockman on Energy Law: Regulating, Consenting and Incentivising the Energy Transition. How are renewable energy projects typically structured? For most renewable generation projects (certainly where project financing is involved), a special purpose vehicle (SPV) will be incorporated to enter into the principal contracts for the project and to own the assets. Construction and operation will typically be outsourced and the funders may require the principal contractors to enter into direct agreements, postponing any right to terminate to allow the funders to exercise step-in rights (these contracts are not shown in Diagram A below). This will certainly be the case if the renewable project is being project financed. For further practical guidance on the financing of energy, power and resources projects across a number of sectors, including those discussed in this Practice Note,

Background The term ‘MMC’ The Ministry of Housing, Communities & Local Government's specialist sub-group has developed a definition for Modern Methods of Construction (MMC). The definition framework identifies the following seven MMC categories: • Category 1—Pre-Manufacturing—3D primary structural systems • Category 2—Pre-Manufacturing—2D primary structural systems • Category 3—Pre-Manufacturing—Non systemised structural components • Category 4—Pre-Manufacturing—Additive Manufacturing • Category 5—Pre-Manufacturing—Non-structural assemblies and sub-assemblies • Category 6—Traditional building product led site labour reduction/productivity improvements • Category 7—Site process led labour reduction/productivity improvements The intention is for this framework to regularise and refine the term MMC by defining the broad spectrum of innovative construction techniques being applied in the market. Further details can be found here. For practitioners it is useful to find out if your project incorporates MMC elements and identify to what extent this impacts the build. This is particularly relevant in respect of key risk matters in contracts such as structuring payment, dealing with title or insolvency risk, programme, design responsibility, tackling climate change, and in dealing with issues such as materials short supply or fire safety. Construction

Definition of relevant independent adviser ‘Relevant independent adviser’ for the purposes of a giving advice on the terms and effect of the proposed agreement and, in particular, its effect on his ability to pursue his rights before an employment tribunal, in order to meet the conditions for the settlement agreement to be legally binding, means: • a qualified lawyer (a barrister, solicitor or other authorised advocate or litigator) • an officer, official, employee or member of an independent trade union who has been certified in writing by the union as competent to give advice and as authorised to do so on behalf of the union except where the union is the employer (or associated employer) of the person being given the advice • someone who works at an advice

This Practice Note considers the extent to which it is possible to contract out of the application of the Transfer of Undertakings (Protection of Employment) Regulations 2006, SI 2006/246 (TUPE 2006). It examines the ability to settle claims under TUPE 2006 by settlement agreement (formerly known as a compromise agreement) and tripartite settlement agreements. It also explains the general rule that claims where the remedy arises under TUPE 2006 cannot be settled, but claims where the remedy arises under other legislation, eg Employment Rights Act 1996 (ERA 1996) may be settled. Finally, it considers Advisory, Conciliation and Arbitration Service (Acas) conciliation of certain TUPE 2006 claims and the application of the early conciliation requirement to those claims. EU-derived laws, such as much of TUPE 2006, that have been made to implement UK obligations under EU law (such as the obligation to implement Directive 2001/23/EC, the Acquired Rights Directive (ARD)), applicable in the UK at the end of the Brexit transition period/IP completion day are preserved in the UK’s domestic legal framework as assimilated law. For

This Precedent confidentiality letter or non-disclosure agreement (NDA) assumes that there will be a one-way flow of confidential information (and possibly personal data) from the sellers to the buyer. It therefore also includes links to Precedent pro-disclosing party and pro-receiving party data sharing provisions involving incidental personal data sharing if the parties will each act as joint controllers and wish to contract on a basis that complies with essential requirements of Irish data protection law in connection with limited sharing of low risk personal data as part of due diligence. As part of the sale of a company, the seller or sellers will usually provide information to the potential buyer concerning the target company in order for detailed negotiations to take place. This is a confidentiality letter to be entered into before such information is disclosed to the potential buyer, setting out terms and obligations relating to the disclosure of such information. Usually it will be drafted by the buyer. The letter should be used where there are two or more individual sellers

FORTHCOMING CHANGES: there are a number of proposed changes to the leasehold and enfranchisement landscape—for more information, see Practice Note: Property—horizon scanner. This Checklist sets out the considerations and steps to be taken by a tenant, and relevant timescales or deadlines for those steps, to collectively acquire the freehold of relevant premises under the Leasehold Reform, Housing and Urban Development Act 1993 (LRHUDA 1993), including serving a section 13 notice of claim, considering the landlord’s section 21 counter-notice admitting or not admitting a claim and/or opposing the claim on the basis of intention to redevelop (or taking steps in the event of the landlord’s failure to serve a counter-notice), and deadlines for an application to the First-tier Tribunal (FTT) (or Leasehold Valuation Tribunal in Wales (LVT)) for determination of terms if they cannot be agreed and/or the County Court in the event that the contract is not completed within the statutory deadline once terms have been agreed/determined. For guidance in respect of the steps to be taken

Administration is a procedure designed to give an entity breathing space, with a view to either a rescue or a restructure or to allow for a better outcome for all creditors than a liquidation. The modern administration regime is to be found in Schedule B1 to the Insolvency Act 1986 (IA 1986) which was introduced on 15 September 2003 by the Enterprise Act 2002. This Practice Note is aimed at real estate practitioners. It introduces the basic elements of administration and considers key provisions required in contracts for the sale of land if the seller is in administration. Appointment Administrators may be appointed: • by the court on the application of the company, its directors and/or any of one or more of its creditors • by the holders of a qualifying floating charge (QFC) without applying to court, although a notice of appointment must be filed • by the company or its directors without applying to court (notice of appointment to be filed) Objectives The objectives of administration are, in strict order: • to

This Practice Note explains what design and build (commonly referred to as ‘D&B’) procurement is. It also considers why an employer would decide to use this method of procurement. It looks at the structure of a construction project procured via the design and build route, the factors that need to be considered in deciding whether to adopt this method of procurement (particularly design responsibility and risk allocation) and what the advantages may be to the parties (particularly the employer) of taking this approach rather than procuring the project via traditional procurement (or another alternative method of procurement). What is design and build procurement? The contractual method by which the employer decides to procure a construction project is a key factor in determining the cost-effectiveness, quality and overall success of the project and the employer’s satisfaction with the end result. This choice will be influenced by the time available for tendering and for completion of the project, the method of financing and the expertise of the developer—see Practice Note: Choosing the right procurement method—construction projects. Typically, an employer

This Practice Note covers constructive trusts, which represent one of the three types of trust that do not require to be declared or evidenced in writing—the others being resulting trusts and implied trusts, although it is doubtful whether there is any form of implied trust which is not in fact either a constructive trust or a resulting trust. It examines what constitutes a constructive trust, when a constructive trust might arise or be imposed, what happens to unauthorised profits of a fiduciary, and the liability of third parties. In the Court of Appeal case of Paragon Finance v D B Thakerar & Co, Millett LJ subdivided types of constructive trust into two categories, distinguishing between: • the constructive trust proper, where equity intervenes to prevent the legal owner from unconscionably denying the beneficial interest of another (known as the institutional constructive trust) • the so-called constructive trust, where equity intervenes to provide relief against fraud by making those implicated in the fraud accountable as if they were trustees (known as the remedial constructive trust) Constructive trusts