Employment analysis: The government has launched a consultation on a new Code of Practice on dismissal and re-engagement, to tackle the controversial use of ‘fire and rehire’ practices to change employees’ terms and conditions of employment. David Whincup, partner at Squire Patton Boggs, discusses the government’s first draft of that Code of Practice.

FORTHCOMING DEVELOPMENT: Section 10 of the Finance Act 2022 will increase the normal minimum pension age (NMPA) from 55 to 57 on 6 April 2028 (save for members of the firefighters, police and armed forces public service pension schemes). The Finance Act 2022 will also give members of registered pension schemes a right to take their benefits before age 57, if on or before 4 November 2021 they either had an ‘unqualified right’ to take benefits or were in the process of a substantive transfer to a scheme offering an unqualified right to a protected pension age of less than 57 on or before 4 November 2021. To benefit from this new 2028 protection, the rules of the pension scheme must have included (on 11 February 2021) an unqualified right to take the entitlement to scheme benefits before age 57. For further information, see Practice Note: Increasing the normal minimum pension age (NMPA) to 57—pensions impact. THIS PRACTICE NOTE APPLIES TO ALL OCCUPATIONAL PENSION SCHEMES Statutory requirement to increase pensions in payment Since

Government decision to increase normal minimum pension age from 55 to 57 Following a period of consultation in 2021, the government decided to increase the normal minimum pension age (NMPA) from 55 to 57 with effect from 6 April 2028. The NMPA is the earliest age at which members may take their benefits (other than ill-health benefits) as authorised member payments under a registered pension scheme. It is important to remember that, regardless of the NMPA set by legislation, it is the scheme’s own rules which determine when benefits can be taken and in what form. However, if a scheme routinely allows benefit payments before the statutory NMPA, it ultimately risks de-registration (see Practice Note: Unauthorised payments—tax charges, de-registration and reporting requirements — De-registration and the de-registration charge). While a scheme may set a minimum pension age that is higher than the statutory NMPA, in practice many scheme rules mirror (or cross-refer to) the statutory NMPA. The NMPA used to be set at 50 under the Finance Act 2004 (FA 2004) before it was changed on 6 April 2010 to 55.

When information is stored on a back-up tape by saving only the additional information since the last back up, rather than capturing all the information on available.

What are incremental facilities? An incremental facility is feature included in a credit agreement where, subject to meeting certain pre-agreed parameters, the borrower is afforded the flexibility to incur additional (or increases in) debt facility commitments. These will typically benefit from guarantees and security on the same basis as other existing facility commitments. Incremental facilities are sometimes referred to as 'accordion' facilities as total commitments under the credit agreement will expand if incremental debt is incurred. Typical deal structure—where/when are they used Incremental debt flexibility is a common feature of large-cap and mid-cap sponsor-backed transactions. The Loan Market Association form of loan agreement for use in leveraged finance transactions (the LMA Credit Document) now incorporates optional drafting for such a feature. In mid-cap transactions, only pari-passu ranking senior term incremental facilities are typically contemplated—these will sit alongside the existing senior term facilities. An exception to this is that certain unitranche super-senior mid-cap structures also allow for the incurrence of additional super-senior term debt. In large-cap deal structures, incremental facilities

Incremental facilities are also sometimes known as accordion facilities and refer to a mechanism in the facilities agreement under which, provided certain conditions are met such as pro forma compliance with a leverage test, lenders under the facilities agreement who wish to do so can lend additional debt. The terms of the additional debt will typically be documented in an increase notice. Accordion or incremental debt should be distinguished from structural adjustment which typically requires the consent of the syndicate. Borrowing under the incremental facility mechanism only requires consent from participating lenders (provided the conditions are met).

Costs that have been incurred in the past. For the purposes of: —the costs budget, they are costs which are incurred up to or including the costs management conference (CPR 3.17) —variation of a costs budget, they are costs incurred up to the date of the variation (CPR 3.15A)

Type of covenant normally found in bond documentation which restricts the issuer from taking certain actions (eg incurring more debt) unless it satisfies certain financial criteria.

Indecency describes conduct, images or communications that offend prevailing standards of sexual propriety, without necessarily amounting to obscenity or explicit sexual activity. It is a contextual concept, assessed objectively by reference to contemporary community standards, the audience, and the circumstances of publication or behaviour.In England and Wales and Northern Ireland, “indecent” appears in numerous statutes and common law offences, including historic indecent assault, indecent exposure, indecent images of children, and offences concerning indecent displays or publications. The term is not usually exhaustively defined in legislation; courts interpret it case by case.In Scotland, indecency underpins common law and statutory sexual offences (for example, shameless indecency historically, and offences involving indecent communications or display), again determined by judicial assessment of what is objectively indecent.In Ireland, the concept similarly features in offences relating to indecent assault (now largely replaced by specific sexual offences), indecent images and indecent display or publication, with meaning developed through case law.Across all four jurisdictions, indecency is significant in criminal liability, regulation of sexual expression and content, and professional discipline where sexually inappropriate conduct is alleged.

Indecent assault describes non-consensual, intentionally sexual contact with another person that falls short of rape or (in modern terminology) sexual assault by penetration. It typically involves touching of a sexual nature, without consent and often with intent to degrade, humiliate or sexually gratify the assailant.In England and Wales and in Northern Ireland, “indecent assault” was a statutory offence under earlier sexual offences legislation, historically divided into offences against women/girls and men/boys. It has now been abolished and replaced by broader offences such as sexual assault and assault by penetration (Sexual Offences Act 2003 in England and Wales; Sexual Offences (Northern Ireland) Order 2008). The expression still appears in historic charges, appeals, sentencing, Criminal Records disclosures and historic abuse litigation.In Scotland, broadly equivalent conduct is prosecuted under common law “indecent assault” or statutory sexual offences; usage is more descriptive than tied to a single statute. In Ireland, indecent assault was also a statutory offence under earlier legislation and has been superseded by modern sexual offences statutes, but remains important in historic cases and limitation, sentencing and conviction‑record analysis.

Indecent exposure describes deliberately revealing one’s genitals so that another person will see them and be alarmed or distressed. In England and Wales it is commonly prosecuted as the statutory offence of “exposure” under the Sexual Offences Act 2003; the conduct need not be in a public place, and key elements are intentional exposure of the genitals and an intention that someone will see and be caused alarm or distress. Recklessness or accidental exposure is insufficient. Related charges may include outraging public decency or public order offences.In Scotland, comparable conduct is criminalised under the Sexual Offences (Scotland) Act 2009 (often termed “sexual exposure”), replacing older common law labels such as shameless or public indecency. Northern Ireland mirrors the England and Wales approach in the Sexual Offences (Northern Ireland) Order 2008.In Ireland, the Criminal Law (Sexual Offences) Act 2017 creates offences covering exposure and offensive conduct of a sexual nature, typically requiring that it occurs in or near a public place and targets causing fear, distress or alarm.Conviction is a sexual offence and, depending on sentence and jurisdiction, may trigger sex offender notification requirements and ancillary orders. Practically, intent, context (public/private visibility), and impact on observers are central to charging and defence.

The criminal offences The Protection of Children Act 1978 (PCA 1978), the Criminal Justice Act 1988 (CJA 1988) and the Coroners and Justice Act 2009 (CJA 2009) govern the making, possession, publication and distribution of indecent images of children. The offences created include: • the taking, making, permitting to make or take, the possessing with a view to distributing, the publishing or causing to be published and the distributing or showing of indecent images of children (PCA 1978, s 1(1)) • the possession of an indecent photograph of a child (CJA 1988, s 160), and • the possession of prohibited images of children (CJA 2009, s 62) This Practice Note deals mainly with the offences created by PCA 1978. For information on the offence of possession of indecent images of children under CJA 1988, see Practice Note: Possession of indecent photographs of a child and prohibited images of children. For information on the offence of possessing a paedophile manual under section 69 of the Serious Crime Act 2015, see Practice Note: Possession of indecent photographs