Clarion

Mock Employment Tribunal

Clarion — 13/03/2025

With the help of the Clarion Employment team, a respected Employment Tribunal Judge, experienced Barristers advocating strongly on behalf of their clients and lively ‘witnesses’ portrayed by actors, you will have the opportunity to observe a realistic Hearing, without the usual cost and risk.

This full day, interactive event will provide valuable experience for people managers and HR professionals on preventing and managing complaints.

In particular you will:

learn how to recognise a potential claim;
understand how to put in place the right preventative measures;
know what to expect and how to prepare for a hearing;
be better able to handle the litigation process and give evidence effectively; and
gain rare insight into how an Employment Judge actually reaches their decision.

The scenario

You will hear from a Claimant who was dismissed as redundant from their role of Sector Lead in a family run recruitment business, having previously complained of sexual harassment against the Managing Director.

The Claimant feels strongly the redundancy was not genuine, and that the real reason for dismissal was their sexual harassment complaint. The Claimant believes the business did not take reasonable steps to prevent the harassment.

The Claimant’s appeal was not upheld and they now pursue claims in the Employment Tribunal for unfair dismissal, victimisation and harassment.

What's included

This full day in-person session will include:

an extended and interactive format;
access to a large team of specialist, senior employment lawyers throughout the day;
2 collaborative workshops with the Clarion team, including input from Barristers and behavioural experts;
a rare opportunity to receive tips and insights from a real Employment Judge;
the chance to ask burning questions;
interactive participation and learning, with a quiz;
improved knowledge of the legal issues;
a unique development day, designed to maximise learning;
a comprehensive set of papers for the Hearing, including Pleadings, a Bundle of key documents and Witness Statements;
breakfast, lunch and refreshments throughout the day; and
entry into a prize draw to receive a luxury hamper.

Event details

To book your place, please complete the form available here. You will receive an invoice once your booking has been made. Please note that due to the popularity of this event, we can only accommodate up to three delegates from any one organisation.

When: Tuesday 13 May 2025
8.30am Registration and breakfast
4.45pm: End and networking

Where: Clarion, Elizabeth House, 13-19 Queen Street LS1 2TW Leeds

Cost: The total cost for this event is £350 + VAT per person

Please contact Laura Courbet via email at laura.courbet@clarionsolicitors.com if you have any questions.

Coronavirus – Break clauses in commercial leases

Clarion — 16/04/2020

Commercial leases may have a clause which allows a landlord and/or a tenant to end a fixed term lease early, this is known as a break clause. The right to exercise a break clause is subject to the terms of the clause itself and may arise on one or more specified dates or may be exercisable at any time on a rolling basis. Read our blog to find out more.

Webinar - Construction law update: an overview of recent cases and developments

Clarion — 08/10/2024

Agenda

Join us for an insightful webinar on 26 November 2024 hosted jointly by Clarion and the Chartered Institute of Arbitration (Ciarb), focusing on the latest updates in construction law and practice. This event will provide a comprehensive overview of recent court cases, regulatory changes, and emerging trends impacting the construction industry.

We are pleased to be joined by Mathias Cheung and Caroline Greenfield from Atkin Chambers, who will share their expert insights on recent pivotal cases and legal developments.

Speakers

Mathias Cheung - Barrister, Atkin Chambers - Mathias’s practice spans domestic and international commercial work, covering construction, engineering, energy, infrastructure, and general commercial disputes. He has extensive experience across all stages of litigation, adjudication, and arbitration, involving bespoke and standard form contracts, including FIDIC, JCT, and NEC. His recent cases include Energy Works (Hull) Ltd v MW High Tech Projects UK Ltd and ongoing proceedings in Buckinghamshire Council v FCC Buckinghamshire Ltd.

Caroline Greenfield - Barrister, Atkin Chambers - Caroline’s practice encompasses construction and general commercial work at all stages of litigation, adjudication and arbitration. Her work has involved bespoke and standard form contracts including JCT, NEC, FIDIC and RIBA in a number of jurisdictions. Caroline’s recent instructions include full trials in the County Court and applications in the High Court.

Phil Morrison - Partner & Head of Construction, Clarion - Phil has over 25 years of experience in both contentious and non-contentious matters. Phil is recognised to have expertise in dealing with claims relating to fire stopping and the defective cladding on buildings that have arisen since the Grenfell tragedy. Phil is also Chairman for the Chartered Institute of Arbitrators’ Northeast Branch.

Registration & Timings

17:30 - 19:00: Webinar presentations & Q&A

Register your place here.

Can't make the date? Register anyway and we'll send you a copy of the recording.

EVENT: Robots - friend or foe?

Clarion — 22/02/2018

Recent media headlines have berated poor UK productivity figures, particularly in the regions. There are a large number of historical contributory factors to this issue, not least poor skills, skills repatriation to Europe post Brexit as well as ensuring the education curriculum reflects the needs of the manufacturing sector.

Our 2015 The Robots are coming seminar predicted the increased adoption of robotics and AI in the manufacturing sector in 2018 they are now amongst us! In this seminar, we explore whether investment in robotics and AI can create regional competitive advantage? Can we further embed this technology in the education curriculum and leverage it in manufacturing to improve efficiency, enhance quality and allow the human to move to higher value/higher skilled tasks? What are the employment and cultural issues associated with this agenda? To help us navigate these themes, we have a number of specialists including:

John Pendleton - MD of Rosti Automotive and Chair of Made in Yorkshire, will highlight the benefits of his significant investment in Robotics.

Adam Hurst Premier Farnell, will explore the increasing number of applications for Raspberry Pi in the manufacturing sector as well as the importance of its use in education in engaging student in programming and electronics.

Mike Hodge MD of Cimlogic, will share how he helps world class manufacturers improve productivity through data.

Shaun Bedford Head of Operations at Holmesterne, one of the leading food businesses in North Yorkshire, will share his recent experience in enhanced productivity through automation.

Deborah Warren Senior Associate, Clarion, will discuss the employment dynamics of mixing robots and people!

When? 27 March 2018

Where? Elizabeth House, 13-19 Queen Street, Leeds LS1 2TW

Schedule

8.30am Registration and breakfast

9.00am Seminar commences

10.45am Seminar to close followed by networking

BEWARE: COURTESY OF ACTIVE8 ROBOTS, ROBOTS WILL BE AMONGST US ON THE DAY!

To reserve your place or if you have any questions regarding the event please contact Lauren Perry on 0113 336 3352 or via email at lauren.perry@clarionsolicitors.com.

Supply chain contract management blog series #4: How to read and understand a force majeure clause

Clarion — 15/08/2022

A force majeure clause (FMC) varies a business’ obligations and liabilities under a contract where there has been an extraordinary event out of that business’ control.

It may allow a business to not perform – or delay performance of – certain obligations or allow a right to terminate the contract.

The availability and effect of an FMC entirely depends on the wording. This short blog gives you some tools to understand any such clause and how it may be used, including some common wording to look out for.

How can we help

We are specialists in advising businesses the availability and exercise of FMCs. We can also take you through your rights available under the contract and assist you in drafting the most beneficial terms in your business environment. Should you need detailed or tailored advice, please contact Rob Stewart in our Commercial Dispute Resolution team.

Disclaimer: Anything posted in this blog is for general information only and is not intended to provide legal advice on any general or specific matter.

Webinar: Workforce Flexibility - 26th April at 9:00 am

Clarion — 07/04/2022

Flexible, agile and hybrid working is on the rise, as businesses adapt to increased demands from employees for greater flexibility and home-working whilst, at the same time, requiring greater agility from their workforce. In addition, government proposals will make flexible working a ‘day-one right’ and give additional rights to certain workers, including those caring for other family members.

In this webinar, we will consider the law around flexible working and the proposed changes, and explore how businesses can make greater flexibility work for them - without negative impact on culture, retention or productivity.

The session will cover...

the reasons for and the challenges in implementing flexible, agile and hybrid working into your business;
how to deal with fluctuation in your resource needs;
the legal issues in creating a multi-skilled, adaptable workforce;
the current law around flexible working and the impact of COVID;
the proposed changes to flexible working and how they might work in practice;
the risks of refusing flexible working requests; and
what this means for the future in attracting, retaining and developing people.

The format of this webinar will be the an overview of the practical and legal consideration followed by an open discussion which will provide you with the opportunity to ask questions.

Your speakers

Sarah Tahamtani - Partner, Head of Employment at Clarion

Professor Kathy Daniels - Associate Pro-Vice Chancellor (Engagement) at Aston University, Birmingham and Lay Member of Employment Tribunals

Regsister your free place here: https://us02web.zoom.us/webinar/register/WN_bRf2e3zkS8qFjHlLrEeepA

Business Immigration changes – Here we go again

Clarion — 14/07/2025

You would be forgiven for asking yourself, ‘Have I read this article before?’. Business immigration reforms have been a significant talking point for employers throughout 2024 and 2025 so far. Once again, the Home Office has introduced further sweeping changes published in their “Statement of changes to the Immigration Rules” and long-time sponsors may indeed feel that familiar sense of déjà vu.

This statement was published on 1 July 2025, with the outlined changes set to take effect from 22 July 2025. Affecting a number of core areas in a very short space of time, it’s vital for employers to understand what these changes mean for them. To help you stay ahead of the curve, we’ve put together a handy reference guide covering the key points from the published statement below.

Degree is key

Skilled Worker roles must now meet RQF Level 6 (degree level or above), very much like the old Tier 2 (General) system. This change actively reverses the previous reduction, which took place in the wake of Brexit and lowered the threshold to RQF 3. With this change, that means approximately 180 eligible occupations (those at RQF 3-5) will be removed from general eligibility.

However, there will be transitional arrangements that provide protection for those already in sub-degree roles, or those that hold valid Certificates of Sponsorship before 22 July 2025. This includes workers already in the Skilled Worker route, or those that have been sponsored for an application which is later successful. That means existing Skilled Worker visa holders can continue to renew their visas, change employment, and take supplementary employment in occupations below RQF Level 6.

It’s important to note that these transitional arrangements will not be in place indefinitely, and are set to be reviewed in due course. For the avoidance of doubt, they are a secondary set of transitional arrangements and run alongside the existing set from the changes in April 2024.

Money makes the world go round

The government are introducing routine updates to salary requirements across the Skilled Worker, Global Business Mobility, and Scale-up routes. These updates are in line with the latest (2024) Annual Survey of Hours and Earnings (ASHE) data, and make the remainder of the standard update to general salary thresholds and going rates for individual occupations:

Route/Points Option	Current Threshold	New Threshold
Standard Skilled Worker	£38,700	£41,700
PhD (non-STEM)	£34,830	£37,500
STEM PhD New Entrants ISL roles	£30,960	£33,400
Global Business Mobility: Senior or Specialist Worker	£48,500	£52,500

These are based on the latest ASHE data to reflect UK pay trends, but there are no transitional arrangements for the salary changes, meaning that extension applications for existing Skilled Workers will still be subject to the higher requirements.

There has also been a restructure of Appendix Skilled Occupations, so that it now presents the eligible occupations and updated going rates in separate tables for occupations at RQF Level 6+ and sub-degree occupations at RQF Level 3-5. It’s crucial for employers to check where their roles sit under these updated lists. Just because a role can be found in Appendix Skilled Occupations does not mean it is eligible for sponsorship, and careful analysis of where it appears is now more important than ever. Alongside this, there are updated salary rates for NHS and health roles in Scotland, where these have been corrected to align thresholds across the UK.

Farewell Immigration Salary List, we hardly knew ye

Whilst the Immigration Salary List (ISL) will exist for a little longer, it will ultimately be phased out in future changes to Immigration Rules. Having previously been known as the Shortage Occupation List for many years, the ISL has not been long-lived, and its next iteration will take the form of the Temporary Shortage List (TSL). In the meantime, the ISL will have fixed salary floors of £33,400 (RQF 6+) and £23,200 (RQF 3-5), and, most notably, no going rate or visa fee reductions - workers will be subject to the full occupational going rate.

For the replacement TSL, approximately 50-52 occupations are deemed vital to the Modern Industrial Strategy, applicable for RQF 3-5 roles only. However, these entries are time-limited and conditional, and will be subject to ongoing review by the MAC. Occupations will only be included or retained on the list where the MAC has advised that it’s justified, where there is a workforce strategy in place, and where employers seeking to recruit from abroad are committed to playing their part in increasing recruitment from the domestic workforce.

The government are set to provide removal dates for occupations on both lists at the end of 2026, but this date could be brought forward if there are any compliance issues present on the lists.

It is important to note that workers sponsored in occupations on either list at RQF 3-5 will be prohibited from bringing their families with them to the UK from 22 July 2025 onwards. For many prospective employees, this could be a deal breaker. It doesn’t apply, however, for occupations at degree level or above, or workers sponsored in occupations at RQF 3-5 who are already in the Skilled Worker route before 22 July 2025.

What next?

We anticipate that the following further changes not captured in this Statement of Changes but set out in the government’s White Paper will be introduced in due course, potentially by the end of 2025:

An increase of 32% to the Immigration Skills Charge;
An increase to the English Language requirement, most likely across all routes;
An increase to the qualifying period for indefinite leave to remain from 5 years to 10 years; and
A new framework for family visa policy.

With a rapid introduction set for 22 July 2025 shortly after the statement was published at the beginning of the month, Home Office compliance efforts on the increase, and further changes in the pipeline, it’s essential for sponsors and employers to develop a firm understanding of what those changes mean for your business, for your policies and processes, and for your longer-term recruitment and workforce planning strategies. Where possible, employers may wish to seize upon this very small window of opportunity to assign Certificates of Sponsorship under the existing rules.

That’s where we can help. If you’d like to know more about how these changes impact you, or would like to know how we can support you with your business immigration requirements, please don’t hesitate to get in touch with a member of our team.

Disclaimer: Anything posted in this blog is for general information only and is not intended to provide legal advice on any general or specific matter.

Webinar: Business immigration update for sponsors - 6 March 2025

Clarion — 24/02/2025

Data released by the Home Office in 2024 indicated a dramatic increase in compliance checks on sponsor licence holders with five times the number of sponsor licence revocations than the previous year.

The Government has been very clear that its priority is to ensure sponsor compliance and accountability to reduce illegal working. It’s therefore more important now than ever before to ensure that sponsor licence holders know, understand and comply with their sponsor duties.

Join us for this bitesize webinar where we’ll give you a refresher on those duties and an update on the key changes that have taken place over the last 12 months that all sponsors should be aware of.

Your speakers

Suzanne Treen, Legal Director, Employment and Business Immigration team

Suzanne advises clients on business immigration assisting clients to make sponsor licence applications, comply with their sponsor obligations, as well as visa applications for migrant workers under the points-based system and visitor route. Suzanne advises international clients on routes into the UK and has assisted a number of employers who have fallen foul of the immigration rules on corporate transactions.

Anna-Elise Harvey, Associate, Employment and Business Immigration team

Anna specialises in business immigration, having focused on this area in her final year of training. She has particular expertise in conducting right to work checks, regularly advising on compliance with this area in the context of corporate transactions and assisting clients with internal audits of their processes. She also has experience in all aspects of sponsoring migrant workers and frequently provides advice to clients on identifying and obtaining the appropriate visas for their key employees, as well as securing their longer-term rights to stay and work in the UK.

Reserve your place

After registering, you will receive a confirmation email containing information about joining the webinar.

Section 215 Notices (harm to local amenity): A practical guide for owners and occupiers

Clarion — 13/01/2026

If the condition of land is harming local amenity, a local planning authority can require the owner or occupier to put things right using a notice under section 215 of the Town and Country Planning Act 1990 (a Section 215 Notice).

Section 215 notices are commonly used to secure improvements to untidy land or deteriorating buildings where action is needed to protect the look and feel of an area, even though there is no national database tracking how often they are served. Press reports indicate, for example, that West Midlands councils served over 200 Section 215 Notices between 2010 and 2015, and that Cornwall Council served 12 notices in 2022, illustrating the general use of the power.

What can a Section 215 Notice require?

The notice can require a wide range of steps to improve the condition of land or buildings, such as clearance, planting, demolition and external repairs, and must specify what must be done and by when. The compliance period must be at least 28 days from service. The power is focused on the condition and maintenance of the land itself, which limits its use where the issue is one of taste rather than upkeep. A well-known example is the High Court decision in R (Lisl-Mainwaring) v Kensington and Chelsea RLBC (2017), where a Section 215 Notice aimed at a red‑and‑white striped townhouse was quashed because the painting was lawful under permitted development rights and there was no disrepair; using Section 215 to police aesthetics fell outside the planning code’s spirit.

How do authorities decide to act?

Amenity is not defined in the legislation, so impact on amenity is assessed as a matter of fact and degree. Authorities are expected to consider the land’s condition, its effect on the surrounding area, and the scope of the power, then exercise their discretion case by case. In practice, this should mean that authorities target genuinely harmful conditions and set proportionate, clear steps to remedy the harm within a reasonable timeframe.

Your rights of appeal

An owner or occupier can appeal to the magistrates’ court under section 217, and must do so by the date the notice is stated to take effect. If no appeal is lodged by that date, the notice takes effect immediately. The statutory grounds include that the land’s condition does not adversely affect amenity, the condition results from lawful operations or use, the notice requires more than necessary to prevent harm, or the compliance period is too short. If the site boundaries are incorrect and include land not in the ownership of the recipient of the Notice, this can form part of the appeal, although the magistrates have powers to amend the boundary. Once an appeal is submitted, the notice has no effect until the magistrates determine it, and the court may quash or vary the notice if appropriate.

Non‑compliance and enforcement

If a notice is not appealed or an appeal is dismissed, failure to comply is a criminal offence. The authority may prosecute in the magistrates’ court, and a fine can be imposed. In addition, the authority can enter the land, carry out the works itself, and recover its expenses from the owner or occupier.

Recent themes and practical tips

The Lisl‑Mainwaring case underlines the boundary between condition and aesthetics. Owners should scrutinise whether the notice targets genuine disrepair or maintenance issues rather than lawful design choices. Where a notice is served, check that the steps are precise, proportionate to the stated harm and achievable within the compliance period, and consider promptly whether an appeal on one or more statutory grounds is warranted to preserve your position.

How we can help

Clarion’s planning team regularly advises on Section 215 Notices and wider planning enforcement issues. We recently achieved the withdrawal of a Section 215 Notice for a client. If you receive a notice, or an authority signals that one is being considered, early advice can help you engage constructively, refine the required steps, or appeal where appropriate. Please contact Stuart Lumb for tailored support.

Energy in manufacturing – Corporate Power Purchase Agreements (CPPAs)

Clarion — 10/10/2025

Have you ever considered a Corporate Power Purchase Agreement (CPPA)? If you have not come across them yet, a CPPA is essentially a long-term agreement that allows you to buy energy from an energy producer (often clean energy or renewables developer). These types of agreements have grown in significance over the years and are becoming an important part of energy procurement strategies for manufacturers across the UK, particularly as businesses actively look for smarter ways to take control of their power and hedge against energy price volatility.

But why now? Well, CPPAs give businesses greater price certainty and help to reinforce sustainability credentials whilst simultaneously providing a potential avenue for cost savings over time. The UK Government are increasingly encouraging decentralised energy and this, coupled with rising emissions, including carbon, costs alongside lower prices for wind, solar and other clean technologies, mean that manufacturers are able to benefit from engaging directly with renewable energy projects.

How does a CPPA work?

Corporate Power Purchase Agreements act as a long-term contract between a buyer (you) and a supplier (the generator). In many models, there is also a utility or licensed energy provider involved to handle the grid balancing and energy delivery. These agreements typically last 10-15 years, providing stable, predictable pricing that enables separation from market volatility.

There are three main CPPA structures that businesses typically utilise:

Private wire/onsite/direct PPA – Power comes directly from a co-located or nearby renewable source, such as rooftop solar panels, wind turbine, a biomass or anaerobic digestion plant, or other embedded power generation which is directly connected (via a private wire/cable) to the off-taker (i.e. the manufacturer).
Sleeved PPA – Power is generated by a generator at an off-site power station, then passed through the grid and handled and delivered by a licensed energy supplier to the end customer.
Virtual/Synthetic or financial PPA – In this structure, there’s no physical energy transfer. Instead, the parties agree on a fixed “strike price” and settle the difference with market pricing.

Generally, most manufacturers in the UK would use a private wire/onsite/direct PPA or a sleeved structure.

Private wire/onsite/direct PPA

This PPA structure involves a physical cable connection between a power generator, which is typically located in close proximity to or even on a manufacturer’s site. In most circumstances, all energy generated by the generator is fed into the manufacturer’s premises – the energy supplied is not subject to the same grid-associated costs as if the energy was supplied by a licenced supplier via the licensed grid network. Manufacturers tend to lock in a specific PPA price, which, in most cases, is lower than energy prices for grid energy and will use this PPA in conjunction with back-up and top-up power from a licensed supplier via the grid.

Correctly dealing with excess electricity under this form of PPA is also crucial so that the arrangement does not present an energy regulation risk from a licence exemption perspective to the off-taker (i.e. the manufacturer). If a project is designed specifically for your requirements on-site, additional project development risks need to be taken into account such as reaching the commissioning and operation by an agreed commercial operation date and dealing with project delays and other issues such as grid connection, consenting and permitting.

Sleeved PPAs/Virtual/Synthetic PPAs

There are also PPAs knows as Sleeved or Virtual/Synthetic PPAs. These provide similar benefits to a private wire/onsite/direct PPA, but they work a little differently. Instead of being directly connected to a business premises, these PPAs route electricity through the licensed national grid, but the user goes through an intermediary (i.e. a licensed supplier) who handles the balancing and delivery of the power and ensures that the manufacturer is credited with renewable supply and fixed pricing that matches the output of a particular generator or generation site. Through these arrangements, both the end customer (i.e. manufacturer) and the generator obtain long term price certainty on the energy supply, and the intermediary (i.e. licensed supplier) receives a “sleeving fee” for their services.

The rise in CPPA adoption across the manufacturing sector

More and more manufacturers are beginning to make use of CPPAs as a way to address the challenges they face in energy procurement. These agreements provide a number of different benefits that help to strengthen other business elements, too.

CPPAs can help manufacturers hedge against wholesale energy price volatility. CPPAs tend to be more expensive in the short term, however, they can work out cheaper in the long term. As we have discussed in previous articles, this energy price volatility has become a major hurdle for business across the country, and with the ability to negotiate lower-than-market fixed prices or index-linked pricing with clear caps/floors, manufacturers can gain strong price certainty over a set period of time. However, it’s still important to make sure that contracts account for any future changes to regulation, transmission charges, subsidy schemes etc.

ESG and decarbonisation also play a leading role in the wider adoption of CPPAs. They provide traceable, project-specific renewable energy, rather than generic green tariffs. This means that manufacturers can further pursue meeting their emissions targets, as well as satisfying ESG reporting frameworks. Alongside this, a CPPA can help to demonstrate environmental leadership to investors, customers, competitors, and regulators as well as their own staff, and also unlock access to green finance or preferential procurement terms.

Is a CPPA right for you? What to look out for

A CPPA is a complex commercial and legal arrangement which means that having access to specialist input is crucial. It is therefore essential to understand key risk areas and negotiation points when considering whether or not a CPPA is for you.

As with any strategic change, it’s important to determine whether it is a change that will provide you with a positive outcome. Proper planning is key, and as we have mentioned previously, that means asking and answering a number of questions from the outset. Your energy demand as well as general corporate strategy plays a big part in this respect, as getting the most out of a CPPA typically means having the ability to forecast your energy needs for the next 10 to 15 years.

You need to determine whether you are able to commit to a long-term contract or not. As you may be an anchor off-taker for a power generator (i.e. the PPA or CPPA being a key contract which underpins project revenues and generally the entire financial business case of the power generator). Exit/termination clauses can be particularly complex and flexibility for both parties is not always easy to achieve. How much of your load does the PPA cover, and what happens if your demand falls from situations such as factory changes or downturns? Volume commitments, take-or-pay arrangements as well as potential power project curtailment all have an impact on whether or not a CPPA is for you.

You also need to carefully look at exit and termination rights. When reviewing your CPPA contracts, keep an eye out for break clauses, early exit fees and other termination consequences and rights to transfer if your business structure changes. Alongside exit terms and termination consequences, you will also need to think about counterparty risk (i.e. what is the financial covenant strength of the generator), particularly as generators may be in the early stages of their project without an extensive balance sheet, often required to service debt from energy revenues.

Project lenders or investors will often require step-in rights in case of a failure to perform by the generator, but also require additional guarantees or other forms of security to ensure an off-taker (i.e. manufacturer) complies with their obligations (i.e. mainly payment obligations). It is important to ensure you carry out careful due diligence on the generator and the project structure and, where necessary, put in place sufficient additional security to ensure obligations under the PPA or CPPA are complied with.

There are also site ownership/control questions for those who may be pursuing a private wire/onsite/direct PPA. These models often require planning permission, grid connection rights, access and other land rights, depending on the nature of the agreement. From a legal and bankability perspective, it is critical to consider and be able to meet all necessary requirements as they will go hand in hand with the actual PPA or CPPA.

Then there are performance and delivery risks to consider – what happens if the generator underperforms? Are there any “make-whole” payments or backup supply guarantees? Your ability to continue business operations is reliant on the generator being able to provide you with sufficient energy when you need it.

Greenwashing can still be an issue in CPPAs. It’s important to ensure that your contract delivers legitimate, auditable renewable credentials, and that there is no greenwashing or double counting. Many businesses have fallen into the trap of greenwashing in recent years, and it can have a significant impact on the reputation and performance of a business. You also need to consider dispute resolution and change in law provisions, so that you can effectively renegotiate if there are any shifts in key market conditions.

Changing from energy buyer to energy partner

As a procurement strategy, CPPAs can be incredibly beneficial. You can take control of your energy, rather than relying on traditional procurement methods that can often subject you to a volatile market. But they come with a certain complexity and are not without risk. If you are considering a form of PPA or CPPA but you are not quite sure how best to structure it, we can help.

Get in touch with a member of our Energy, Infrastructure & Projects team to find out more about how we can support you to structure your energy procurement.

Manufacturing seminar invitation - Data Data Everywhere...

Clarion — 23/05/2019

Data. It’s ‘Big’. It’s everywhere. Manufacturers now have the ability to generate more data than ever before and this has the potential for almost endless opportunities in terms of improving connectivity with your customers, enhancing efficiency and competitiveness. However, bridging the gap between this hype and knowing where to start can be extremely difficult.

In this seminar we will explore the factors to consider when investing in practical ‘smart(er)’ factory systems, the key ingredients required to unlock the full potential from your data and how to take the first few steps in data analytics in order to drive new business insights that were previously not possible. To explore this topic we have a number of leaders in the field:

Jonathan Matthews, Rolls Royce Plc, Head of Delivery, Ecosystem R² Data Labs - Jonathan is responsible for delivering the operational performance of the digital ecosystem, working in collaboration with Rolls-Royce Business Units and its Innovation Hub to identify and engage with best-in-class external partners to accelerate Rolls-Royce’s future data innovation technology capabilities, to disrupt, to co-create value; to enable and rapidly execute the delivery of the RR Group & R2DL strategy.
Richard Corderoy, Managing Director, Oakland Group - Oakland Group is a Leeds based organisation specialising in project-based analytics, process and quality improvement and data management and governance. Richard will discuss practical tips for getting started with advanced analytics.
David Cunningham, Partner - Commercial and IT, Clarion - will discuss the legal issues to consider when using and storing data.
Lisa Lister, Progress Marketing and Mark Godfrey, MD, Saftronics Ltd - will discuss the funds available to SMEs and how Saftronics accessed two of these funds (LEPs Strategic Business Growth Programme and the Manufacturing Growth Programme) and the benefits from this support.

When? Thursday 20 June 2019

Where? Elizabeth House, 13-19 Queen Street, Leeds LS1 2TW

Schedule

8.30am Registration and breakfast
9.00am Seminar commences
10.45am Seminar to close followed by networking

To reserve your place or if you have any questions regarding the event please contact Lauren Perry on 0113 336 3352 or via email at lauren.perry@clarionsolicitors.com.

Carillion – reducing your risk exposure in the supply chain

Clarion — 25/01/2018

Whilst the full impact of Carillions liquidation remains uncertain for creditors and suppliers, it acts as a timely reminder to review trading relationships and position in the supply chain.

Whilst some early positive steps have been taken, at least in the short term, to stabilise the Carillion supply chain there will inevitably be contagion across the construction sector and beyond. The full impact of that contagion is hard to assess at this stage and it may take several months before the full impact is known.

Click here to read more.

‘Office to residential’ permitted development rights – not always an easy option

Clarion — 19/03/2025

The previous government caused some controversy when they extended permitted development rights, where planning permission is effectively granted nationally for an entire class of development if certain requirements are met. Class MA, Part 3 of Schedule 2 to the Town and Country Planning (General Permitted Development Order) (England) Order 2015 allows commercial buildings to be used for housing. This caused an outcry in some quarters following the introduction of these rights in 2013and concerns were set out in a report carried out by the Royal Institution of Chartered Surveyors dated May 2018 and titled ‘Assessing the impacts of extending permitted development rights to office-to-residential change of use in England’. The report raised a concern that the pace of development would outstrip supporting infrastructure in some authorities and that developers could avoid planning gain because they would not need to provide affordable housing or pay section 106 contributions. In particular, office-to-residential conversions were found to be much less likely to have amenity space and generally were much smaller. As a consequence, more safeguards and checks were added to the relevant permitted development rights.

Concerns and challenges

What is often not recognised are the limitations on permitted development rights and what hoops have to be jumped through to allow the change of use, including a prior approval process for some classes of permitted development. This is demonstrated through a recent appeal decision where a planning inspector dismissed an appeal against a refusal by London Borough of Hammersmith and Fulham of a prior approval application for the change of use of an office to 34 dwellings.

Class MA allows the change of use of a building and any land within its curtilage from a use falling within Class E (commercial, business and service) to a use falling with Class C3 (dwellinghouses). However, a condition of Class MA provides that before beginning development a developer must apply to the local planning authority for a determination as to whether prior approval of the authority will be required on a number of specified matters. The relevant matters include transport impacts, the provision of natural light, waste management and fire risk. These factors were all considered in this appeal.

The inspector considered that the proposed residential use would cause local parking stress in relation to both time and volume. It was concluded that it was unlikely there would be sufficient space to meet parking demand, which would result in an adverse transport impact. Additionally, the London Plan requires development delivering ten or more units to provide a parking bay for disabled people from the outset and there would be a conflict with this policy as such a parking bay would not be provided.

Key issues identified in the appeal

Additionally, a policy in the Local Plan required new development to have car parking permit-free measures imposed unless evidence is provided to show there is a significant lack of public transport available. A draft unilateral undertaking was submitted, and it sought to restrict access to parking permits through restrictive covenants. However, the inspector stated that eligibility for permits is controlled by Local Traffic Orders and the unilateral undertaking did not set out a mechanism for ensuring the Council amends its Traffic Orders. The inspector was not able to conclude that the development would meet the requirement for car-free housing.

The plans submitted with the application showed cycle stands and racks located within the undercroft to the building. The inspector considered that Class MA allows a change of use to land within the curtilage but not operations required to facilitate that change of use. The cycle racks were outside the building and installation would be engineering works that would require separate planning permission. As such, the proposals were outside the scope of the permitted development rights despite the minor nature of the development. The National Planning Practice Guidance provides that where physical development is required to implement the change of use, developers need to consider whether it constitutes development and ensure they have planning permission if necessary.

Additionally, the inspector concluded that the application did not meet requirements regarding fire safety as the Fire Statement that the appellant prepared was not sent to the Council.

Lessons for developers

This decision is a reminder to developers that permitted development rights cannot be taken for granted because all prior approval matters must be acceptable to the local planning authority. The refusal on the ground that cycle stands could not be provided without a separate planning permission highlights that prior to submission of a prior approval application developers need to be careful in checking that a permitted development right they wish to rely upon also allows the full extent of any operational works required for the change of use to be acceptable.

The continued popularity of class MA conversions

Despite the hurdles faced in obtaining prior approval, applications for change of use from commercial to residential under Class MA remain very popular for developers and 1,535 applications under this right were submitted to local authorities in England in the 12 months up to September 2024. Applications in the Greater South East accounted for 70 per cent of the 20 local authorities that received most applications pursuant to this right in this period and this would suggest that Class MA is very attractive in those parts of the country where housing demand is particularly high.

If you need further guidance on the topics discussed in this blog, our Planning Team are here to help. Please do not hesitate to get in touch.

Disclaimer: Anything posted in this blog is for general information only and is not intended to provide legal advice on any general or specific matter.

British Steel – reducing your risk exposure in the supply chain

Clarion — 23/05/2019

Whilst the full impact of British Steel’s liquidation remains uncertain for creditors and suppliers, it acts as a timely reminder to review trading relationships and position in the supply chain.

Whilst some early positive steps will no doubt be taken, at least in the short term, to stabilise British Steel’s supply chain, there will inevitably be contagion across its supply chain and beyond. The full impact of that contagion is hard to assess at this stage and it may take several months before the full impact is known.

Perhaps somewhat unusually for a business the size of British Steel, it has entered compulsory liquidation, with EY being appointed as Special Managers, rather than entering administration. Administration creates a moratorium against creditors taking action and is generally used where a business can be traded on whilst a buyer is found or there is an orderly realisation of its assets.

In light of British Steel’s liquidation, suppliers and creditors should be actively reviewing their contractual position to ascertain:

Whose T&Cs are in play;
What termination rights there are in the event of the insolvency of another contracting party and the contractual consequences of terminating;
What liquidated damages clauses feature in the T&Cs;
Whether the contract can be assigned and/or novated;
Whether the T&Cs contain retention of title (“ROT”) terms and if so they ideally should be so called “all monies terms” i.e. title is retained over all stock supplied and not just unpaid for stock.

In the context of ROT business should ensure that not only are those terms incorporated into the contract between the parties but also that, as a supplier, you can identify your product as having been supplied by you as opposed to anyone else.

If you believe you have ROT you need to act swiftly as once product has been incorporated into a product or changed identity, it is harder to recover it – this is of particular relevance in the manufacturing sector. We frequently find in insolvency scenarios that prompt action where there is valid ROT provides leverage for a supplier to come to a commercial deal regarding the ongoing use or onward sale of their product.

As well as reviewing your contractual position, you should also consider whether you have commercial leverage beyond having a strong contractual position. By way of example:

Is your product bespoke/hard to source from elsewhere and critical to the supply chain such that you can exercise a “ransom” position?
If you have already supplied product does it come with certificates of conformity or similar such that you can withhold those in return for payment?
Do you have intellectual property rights which you could look to enforce to get into the best negotiating position?

If you think a debtor is in financial difficulty, then you should consider acting quickly to put yourself in the best position possible. This may include:

Exercising your ROT terms or at least ensuring your ROT terms are robust and you can identify your product;
Reducing supply of product and credit terms as leverage to secure a guarantee or more favourable terms;
Review your credit control function and processes;
Consider presenting a winding up petition – this will concentrate a debtor’s mind to making payment and also makes it harder for a debtor to enter administration;
Consider appointing an administrator over a debtor to ensure the supply chain is managed;
Consider whether there’s an opportunity to acquire a debtor or part of its business and consolidate the supply chain.

If you have any concerns with the impact of the British Steel liquidation, or otherwise, we are happy to discuss your specific circumstances and you can contact one of our experienced team members.

The current impact of coronavirus on the construction sector

Clarion — 02/04/2020

The construction industry is facing unprecedented disruption due to the coronavirus (COVID-19) crisis. There are many obvious issues which businesses in the construction sector could face such as cash flow issues leading to delayed payments (both making and receiving), potential force majeure events, delay in performance and of course issues surrounding the safety and wellbeing of the work force.

Phil Morrison, Head of Construction, provides an overview of the issues currently impacting the construction industry in his latest blog.

Supply chain contract management blog series #1: Contract delay or disruption? What can you do?

Clarion — 25/07/2022

Late delivery or delay in performance of a contract happens for all sorts of reasons: goods may be stuck in transit, external factors may prevent timely delivery, and sometimes parties are simply late payers.

But what can you do about it? The answer may not be as first thought.

Summary

By and large, if your contract states that time or a deadline is “of the essence”, then any delay should allow you to terminate the contract and claim damages.

If that phrase does not appear in your contract, then a delay is unlikely to allow you to terminate the contract – but you should still be able to claim damages (the delay is still a breach of contract, but not a ‘repudiatory’ breach of contract allowing termination). Alternatively, you can take specific steps to subsequently make time ‘of the essence’ with any subsequent delay to the new deadline giving you the right to terminate the contract and claim damages. There are other options besides.

A word of caution – you must be very careful to correctly identify the relevant type of clause in your contract, understand the options that clause entitles you to take, and act accordingly (and quickly). If you try to terminate your contract on an incorrect basis, you risk being in breach yourself (and potentially liable to the counter-party for damages); alternatively if you delay taking action, take no action, or take action that can be construed as a continuation of the contract, you risk inadvertently losing your right to terminate.

Below is a guide to help you navigate these issues.

Look at your contract

Identify the clause that creates an obligation to deliver or pay etc – and check if a timeframe or deadline for performance has been specified. Such timing clauses may be as follows.

An obligation to perform by a certain date and that time is of the essence

The counter-party must strictly comply with the stated deadline. Any delay (however minor) is likely to constitute a repudiatory breach of contract, and you can terminate the contract and claim damages.

An obligation to perform by a certain date (but time is not expressly stated to be ‘of the essence’)

The counter-party must comply with the stated deadline. Any delay will likely be a breach of contract and you can claim damages – but it is not likely to constitute a repudiatory breach, and so you are unlikely to be able to terminate the contract. So, the contract continues, each party has to comply with their continuing obligations and you can claim damages for the specific delay.

In (very!) rare circumstances, you may be able to terminate the contract on delay if (a) you have been deprived of substantially the whole intended benefit under the contract, or (b) the counter-party has demonstrated an intention never to perform the contract or demonstrated a manner substantially inconsistent with its contractual obligations, in such a way as would deprive you of substantially the whole intended benefit under the contract.

An obligation to perform within a reasonable timeframe

What constitutes a ‘reasonable timeframe’ depends on your particular contract and facts – and is likely to give rise to a heated argument between the parties. Delay is unlikely to allow you to terminate the contract (save in those rare circumstances listed above) but may give rise to damages.

The contract does not provide a deadline

For contracts between businesses for the delivery of goods, the Sale of Goods Act 1979 implies a term that goods should be delivered within a reasonable time. Delay is unlikely to allow you to terminate the contract (save in those rare circumstances listed above) but may give rise to damages.

For contracts involving a consumer for the delivery of goods, the Consumer Rights Act 2015 implies a term that goods must be delivered without undue delay and in any event not more than 30 days after entering into the contract.

For contracts for the supply of services, the Supply of Goods and Services Act 1982 (relating to contracts between businesses) and the Consumer Rights Act 2015 (relating to contracts involving a consumer) require that the services must be performed within a reasonable time.

Time of the essence? – don’t delay if you want to terminate!

If you become aware of a repudiatory breach, and (have the ability and) wish to terminate the contract, you should not delay too long in communicating that termination. Failing to act quickly, or taking steps to continue with the contract, may be construed as you ‘affirming’ the contract meaning that you would lose the right to terminate.

If you need more time to decide whether to terminate the contract, you could consider expressly reserving your rights to terminate. But caution – the contract continues in force and some actions cannot be construed as anything but affirming the contract. Further, the counter-party may be able to rectify their repudiatory breach in that time period, and you would then lose the right to terminate for that repudiatory breach.

Time not of the essence? – other options

Where your contract does not explicitly state that time is of the essence – or if you are in doubt – you may choose to serve notice on the counter-party to make time of the essence.

A notice making time of the essence should be sent without delay and should clearly:

State the actions the counter-party should take, e.g. deliver the goods.
Set a reasonable deadline for those actions (again, a reasonable deadline will be determined by your particular contract and facts, including by reference to any original timeframe and any subsequent impact on you).
Explain that failing to comply with the deadline will result in your termination of the contract.

You will also be bound by the notice, so ensure to consider its implications first – for example, if you demand the delivery of goods that then triggers a payment obligations.

Following service of your notice, time is not of the essence. Any resulting delay (however minor) to meet the new deadline is likely to constitute a repudiatory breach, and you can terminate the contract and claim damages. Alternatively, in those circumstances, you may rely on other contractual rights that permit termination for failure to cure a material breach. This is often the ‘safer’ path. – although you should ensure to follow any prescribed steps in that clause, e.g. as to further notice.

Communications with the other side

For every communication with your counter-party, you must follow any prescribed steps or methods of communication. For example, you may be required to make all communications in writing and sent to the attention of the counter-parties’ CEO at their registered office. These requirements are likely to be found either within the relevant contractual clause or in a separate ‘Notice’ clause – however, you should still review your entire contract in case other clauses apply.

How can we help

Should you need detailed or tailored advice, please contact Rob Stewart in our Commercial Dispute Resolution team who specialises in advising parties who experience a delay in contracts.

Disclaimer: Anything posted in this blog is for general information only and is not intended to provide legal advice on any general or specific matter.

Planning applications must be appeal-ready from the outset

Clarion — 27/02/2026

Planning professionals are accustomed to navigating regular change. New policy, updated guidance, and regulatory amendments are part of the landscape. Some developments require little more than being aware, careful reading and routine adjustment.

Some reforms, however, warrant closer attention. Not necessarily because they are complex in themselves, but because they alter how planning applications are put together and then, if necessary, appealed, if they are to be successful.

The Town and Country Planning (Appeals) (Written Representations Procedure) (England) (Amendment and Saving Provision) Regulations 2026, together with the Planning Inspectorate’s new procedural guide of 12 February 2026 for appeals relating to applications dated on or after 1 April 2026, represent precisely that kind of shift. Their significance is procedural, as well as in where they reposition risk and affect strategy within the planning process.

A subtle but significant shift

Written representations have long formed the backbone of the appeal system — the simplest and most widely used route for determining planning appeals. Under the new Regulations, appeals relating to applications submitted on or after 1 April 2026 will generally proceed under the new Part 1 written representations procedure, unless the Planning Inspectorate considers an alternative procedure more appropriate.

This is more than administrative refinement, and the motivation put forward by the Minister for Planning and Housing in the Explanatory Memorandum to the Regulations focuses on achieving quicker decisions and reducing the burden of most written representation appeals by simplifying the process.

By consolidating appeals around a streamlined written framework and greatly tightening the circumstances in which additional evidence may be introduced, the Regulations reshape both how appeals are prepared and how planning risk should be managed from the outset.

Written representations as the decisive forum

Where appellants might previously have anticipated a greater role for hearings or inquiries, the revised procedural direction places written appeal material firmly at the centre of decision-making. Appeals proceeding under the Part 1 written representations procedure will be determined on the basis of the application materials considered by the local planning authority (LPA) — including all supporting plans, evidence, and reports — together with the appeal form and related documents. The introduction of any new evidence is in effect prevented.

Material not previously before all parties will generally be inadmissible, subject only to limited and defined exceptions. These include situations involving material changes in the development plan or national planning policy, relevant court judgments, Environmental Impact Assessment developments, or significant decisions on related cases. Outside such circumstances, parties should proceed on the basis that the evidential scope of an appeal will be tightly fixed. Interested persons (third parties) are similarly restricted from introducing new comments after the application stage.

In this context, the application stage has clear implications. Successful appeals will depend heavily on the quality, completeness, and coherence of the material submitted.

What this means

Under the new framework, the appeal statement is the primary route through which the merits of a case are advanced. Procedural timetables are tightly controlled, and late submissions will not normally be accepted. Opportunities to supplement or correct evidential deficiencies after refusal are materially reduced.

While the Planning Inspectorate retains discretion to transfer suitable cases to hearings or inquiries, this will be the exception rather than the expectation.

In practical terms, the Inspector’s assessment will focus on:

The application as determined by the LPA, including supporting plans, technical evidence, and representations from interested parties.
The LPA’s decision notice, together with the reasons for refusal where relevant.
The planning officer’s report and any associated committee minutes.
The appeal form submitted by the appellant.
The LPA’s completed appeal questionnaire.

The appeal proceeds on the basis of the original decision-making record, rather than being supplemented by new material.

A reinforcement of early, comprehensive preparation

These reforms reflect a deliberate policy direction, encouraging stronger, more complete submissions at the planning application stage and reducing reliance on the appeal process as a mechanism for reconstruction or refinement.

The shift carries several important implications:

Application-stage evidence assumes greater weight. Planning statements, design and access statements, technical reports, and policy analysis will largely define the parameters of any future appeal.
Evidential gaps become harder to remedy. Reduced flexibility increases the consequences of omissions or weaknesses at determination stage.
Stakeholder engagement dynamics evolve. Third-party participation at planning application stage becomes more significant, given the constrained opportunity for further comment at appeal stage.
Document management and timing become critical. Assumptions that plans or supporting material may safely be regularised, amended, or executed after submission introduce greater procedural risk.

In this environment, appeals increasingly resemble a continuation of the original planning case rather than a second opportunity to reshape it.

In summary

The 2026 appeal reforms do not reinvent the planning appeals system, but do recalibrate it.

They:

Establish written representations as the expected default for most appeals.
Restrict the introduction of new evidence at appeal stage.
Reduce third parties’ ability to introduce new material under the default procedure.
Intensify the importance of completeness at the application stage.

For those contemplating appeals within the revised framework (applications submitted after 1 April 2026), careful and comprehensive preparation from the earliest stages of the planning process is fundamental to success.

If you would like to discuss how the upcoming planning appeals reform may affect you, we can help. Please don’t hesitate to get in touch with a member of the Planning team.

Disclaimer: Anything posted in this blog is for general information only and is not intended to provide legal advice on any general or specific matter.

The Future of Hydrogen - An Essential Webinar for Manufacturers

Clarion — 24/01/2022

On Wednesday 2nd February 10.30am - 12.00pm, Clarion Solicitors are hosting an important webinar, which Made in Yorkshire members can sign up for HERE. This webinar will be covering what the future holds for hydrogen, in regards to COP26, tailored specifically for manufacturers.

Hydrogen is likely to play a crucial role in the pursuit of energy transition over the coming years. The UN Climate Change Conference of the Parties (COP26) that took place in Glasgow in November 2021 will be the acid test that determines whether Hydrogen could account for a significant amount of global energy demand by 2050.

Hydrogen is a versatile, safe and clean form of energy with the potential for zero emissions at the point of use decarbonising challenging sectors such as heavy industry and heavy-duty transport and chemicals, which together are responsible for over one third of global CO2 emissions.

In this webinar, we bring together some of the leading players to reflect on how the hydrogen agenda played out during COP26, including;

Simon Pringle (Event Chair) - Managing Director, Project Rome and Professor of Innovation and Sustainability at Edinburgh University Business School - As well as serving on the UK and Global boards of an energy and environmental PLC, Simon has also been Head of Strategy and Innovation for a large accountancy firm.
Kiara Zennaro - Association for Renewable Energy and Clean Technology (REA) - Kiara currently heads the heat team of the REA, overseeing the activities of the REA focused on the challenge of decarbonising heat. She also leads the Green Gas Forum of the REA, which has represented the green gas industry in the UK since 2004, playing a major role in delivering the expansion of this sector In the UK. The Forum’s scope include green gases such as biogas, biomethane and clean hydrogen.
Melanie Taylor - Head of Stakeholder Relations, Northern Gas Networks - Melanie leads engagement on the net zero energy transition from customers through to policy makers, with a particular focus on the role of hydrogen in a whole systems approach. Prior to NGN, Melanie worked in the public sector leading environmental strategy.
Tim Harper CEO and co-founder of Hydrogen Infrastructure provider Element 2 - Tim’s organisation is establishing the first commercially scaled hydrogen refuelling station network in the UK. They are building the infrastructure to support a rapid shift in long distance freight from diesel to hydrogen and work closely with forecourt operators, vehicle OEMs, transport operators and fleet owners to install the refuelling network needed to achieve the UK’s zero carbon targets.
Rob Duncalf - Head of UK, US & Strategic Projects in Ørsted’s Hydrogen business - Rob has over 12 years renewable energy experience. After establishing the UK Market Development function in Ørsted’s offshore wind business, Rob is now responsible for their hydrogen activities in the UK and US.
Terry Austin - Technology and Innovation Project Lead, Siemens Energy - Terry has spent a year as part of the energy transition team, working with key customers to support their needs around decarbonisation, providing solutions for hydrogen production through electrolysers, hydrogen storage, transport, and hydrogen offtake through fuel cells.
Christian Hellmund - Partner, Energy & Projects, Clarion - Christian has extensive experience, both at Clarion and an international law firm, advising on a number of

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Cybercrime’s impact on Debt Recovery

Clarion — 19/03/2025

In recent times, due to the increasingly sophisticated methods adopted by fraudsters, there has been an alarming increase in cybercrime. It was reported that 50% of UK businesses experienced some form of cyberattack in 2024. Of these, 35% involved impersonation, where the fraudster would impersonate an individual or entity by email or online. Fraudsters will commonly use impersonation to fraudulently intercept emails containing bank details for payment of invoices. For more detailed insights and statistics on cybercrime, you can read the full Cyber Security Breaches Survey 2024 published by the UK Government.

We do not profess to be cybersecurity experts. This blog will therefore not examine how parties can protect themselves from an IT and systems perspective. We will, however, offer our insight with some practical tips on protecting yourselves from a debt recovery angle.

In this blog, we refer to the 'Payer' as the party making the payment (such as a customer or client) and the 'Payee' as the party expecting to receive the payment (such as a supplier or service provider).

How is cybercrime affecting debt recovery?

Common practice will be that the fraudster intercepts an email from the Payee and swaps the bank details, either in the email or on an invoice, to those of the fraudster. This results in the Payer sending money to the fraudster instead of the Payee. A debt is therefore created as the Payee has not received payment for its outstanding invoice.

We have seen an increasing number of cases where a Payer claims to have paid a Payee’s invoice, but unfortunately the Payer has been the victim of cybercrime and has paid a fraudster. This often leads to a “blame game” between the parties, with each trying to pin fault on the other and ultimately the invoice will remain outstanding.

How can the Payee protect themselves?

The Payee should protect themselves when contracting with a party from the outset. Where possible, any contractual documentation should include the nominated bank details for payment. The contract should also include a clause indicating that any change of bank account details will always be given in writing on company letterhead and that the onus is on the Payer to ensure the legitimacy of the change in details.

If no formal contract is in place, the Payee should publish a notice on quotations, order forms and invoices setting out the above, thereby protecting themselves from potential cybercrime.

How can the Payer protect themselves?

The Payer needs to ensure that they verbally confirm the bank details with the Payee whenever they receive notification of a change of bank details from the Payee. The Payer should use a number known to be the Payee’s and ideally speak to a known contact of the Payee.

If the Payer is unable to confirm the details and has previously paid the Payee, then the Payer should use the previous bank details and inform the Payee by email that payment will be made into that account.

Who is at fault?

The onus is generally on the Payer to ensure that the Payee’s invoice is settled. Should a fraudster commit impersonation fraud, and the Payer receives notification of the change of bank details, the onus is on the Payer to ensure that the bank details provided are those of the Payee and carry out due diligence on the legitimacy of any new details which have been provided.

Should the invoice remain outstanding due to impersonation fraud, then indebtedness will be created, and the Payee will be entitled to pursue the Payer as if the invoice had never been paid. The issue of fraud will then be between the Payer, the fraudsters, the Payer’s bank, and/or the police/action for fraud.

A Payer’s only form of defence, should impersonation fraud occur, would be to prove that there had been a heightened degree of contributory negligence on the part of the Payee.

If you have any concerns about the issues discussed in this blog or require further advice, our Debt Recovery team are here to help. Please do not hesitate to get in touch.

Disclaimer: Anything posted in this blog is for general information only and is not intended to provide legal advice on any general or specific matter.

Businesses, public sector and academics join forces to drive investment in Kirklees

Clarion — 12/07/2023

Clarion has brought together leading figures from businesses in the region, the local authority and the university at an event to discuss investment in Kirklees.

A roundtable held at the University of Huddersfield in early July, saw the law firm joined by Yorkshire building and timer merchants Myers Building Supplies; Huddersfield pharmaceutical manufacturer Thornton and Ross; Birstall-based bathrooms business Cubico; Kirklees Council; Huddersfield Unlimited; West Yorkshire Combined Authority; the University of Huddersfield; and Handelsbanken.

The group discussed investment in Kirklees, including some of its key developments such as the ‘National Health and Innovation Campus’ and the ‘Station to Stadium Enterprise Corridor’, as well as the region’s skills gap and the regeneration of Huddersfield.

With its central location between Leeds and Manchester, Kirklees has around 10% of the UK population within an hour’s drive, giving it a great opportunity to capitalise on its plans to invest over £1b in Huddersfield and Dewsbury.

The National Health and Innovation Campus is a 7-acre plot on the site of the former Huddersfield Sports Centre in Southgate, which includes the new Daphne Steel Building, and will be home to the university’s Health & Wellbeing Academy, run by the School of Human and Health Sciences. The Creative Health Project will support people who are out of work, plus mental health projects, and will provide connectivity between job centres and the private sector.

In addition, the Station to Stadium Enterprise Corridor, located between Huddersfield train station and the John Smith’s Stadium, aims to bring highly-skilled jobs to the town. The corridor, centred around the University of Huddersfield’s £250 million National Health Innovation Campus, will have a high-quality urban design.

Steve Crow, business development director of Clarion, explains: “The ambition of those working, living and investing in in the region is further underpinned by its globally respected university and investment in a gigabit infrastructure as well as its diversity of businesses, particularly in the engineering, aerospace and chemicals sectors.

“While there are already a number of really innovative projects underway, collaboration on skills and innovation across the public and private sector is vital in order to enhance value and drive economic growth in Kirklees. In particular, the roundtable discussed ways of retaining talent and ensuring that exciting career opportunities are available to graduates in the region.

Together, we will be focusing on how we can build on the region’s world-class expertise in key sectors such as advanced manufacturing, health and technology, to help all those invested in Kirklees to achieve the region’s full potential.”

Another event to discuss investment in Kirklees will take place on 7 November. To register your interest, contact Leigh Mayor at Clarion.

[Updated] The Labour government's employment law changes: A guide for GCs and in-house legal teams

Clarion — 05/11/2024

After several months of debating Labour’s proposed employment law reforms, the Employment Rights Bill is here. It was published on 10 October 2024, and within the first 100 days of office as promised.

Described by Deputy Prime Minister Angela Rayner as the “biggest upgrades to rights at work for a generation”, the Bill represents an intention to significantly reshape the workplace landscape, address the perceived imbalance and various challenges whilst giving employers a number of considerations for procedures and policies.

The Bill is substantial. It contains 28 items of reform across approximately 150 pages. In many ways, it is a framework for future changes with much of the detail still to follow after extensive consultation (with businesses and trade unions) and secondary legislation. The Bill could still be refined on its passage through Parliament. It is not expected to become law until 2025 with implementation dates into 2026.

However, as general counsel or part of an in-house legal team, the Bill and pending detail of the changes could have a substantial impact on your organisation’s operations, risk management, and legal strategy – even if employment law isn’t within your direct remit.

It’s vital to understand the changes. Because that understanding gives you the tools and knowledge needed to provide effective support to your people and culture teams, whilst also allowing you to anticipate and use the next 12 – 18 months to plan for the risks and wider business impact.

Below, we have summarised some of the key topics in the Bill, giving you the knowledge you need to navigate the potential challenges attached to the intended changes whilst remaining compliant with the evolving legal environment.

1. Tackling ‘exploitative’ work patterns – an end to zero-hours contracts

The Labour government will end what it describes as “exploitative” zero-hours contracts. The Employment Rights Bill will do this by giving certain qualifying workers the right to be offered guaranteed hours after a certain reference period – which remains subject to consultation but is likely to be 12 weeks in order to align with other employment law reference periods.

The change will apply to workers whose working hours/patterns have met certain conditions surrounding the number of hours worked and the regularity of those hours, with regularity being the subject of consultation.

There will also be consultation on whether to extend the regime to agency workers, who are currently exempt.

In any event, it’s a change that is set to give employers an obligation, subject to certain exceptions, to make an offer of guaranteed hours following the end of every relevant reference period reflecting the hours that applicable workers have worked during that time. There will be anti-avoidance provisions.

Therefore, employers will need to come up with systems for tracking hours and regularity of hours undertaken by workers. The workers will ultimately have the option to continue working flexibly on a zero hours basis, but there will be an obligation to offer them a more “stable” contract at certain trigger points and to keep this under review.

As a GC or in-house legal professional, it’s important to ascertain the extent to which this change could affect different areas of your organisation and to ensure a compliant plan is put into place for managing the practical implications.

Challenges:

Businesses that rely on zero-hours contracts for fluctuating demand, which can be a prevalent occurrence in certain sectors, may find it challenging to maintain the same level of flexibility once the changes are brought in.
With the need for more permanence in contracts for workers and the need to provide guaranteed hours and working patterns, even throughout quieter trading periods, organisations may see an increase in labour costs.
Any potential areas of complexity, both in terms of qualifying conditions and exceptions, may lead to mistakes that create further issues.

Solutions:

Alternative staffing models, such as part-time contracts or fixed-term arrangements, remain an option to maintain some degree of operational flexibility whilst simultaneously providing more security to workers.
Engaging in workforce planning allows organisations to better predict and manage staffing needs without heavy reliance on zero-hours contracts.
Organisations can utilise temporary staffing agencies to manage short-term fluctuations in demand - but note that there will be anti-avoidance provisions in the detail of the secondary legislation in due course, and a consultation on extending the regime to agency workers to ensure that they also have an opportunity of direct employment and more definitive working hours.

2. Giving employees flexibility with a better work-life balance

Changes to the flexible working regime are also set to come into force in 2026 which build on existing recent changes.

In April 2024, employees gained a right to request flexible working from their first day of employment (whereas they previously had to work 26 weeks before gaining eligibility). Employees also became entitled to submit 2 requests per year (instead of one).

However, there has been criticism that campaign groups that the changes lacked teeth and did nothing to meaningfully support working families. Not least because the onus remains on the employee to demonstrate how flexible working could operate successfully.

Therefore, the Employment Rights Bill proposes to make flexible working the “genuine default” from day one of employment. It will shift the onus on to the employer to show why the flexible working request cannot be accommodated.

As general counsel or part of an in-house legal team, you may need to support managers and the people team in managing requests and ensuring that refusals are properly substantiated within the permitted statutory grounds (ideally evidenced by some data or records). You may also need to ensure that written outcomes are robust.

Challenges:

Employers can expect not only an increase in the number of requests being submitted but also greater difficulty in declining requests – although it does look as though the 8 existing statutory grounds for declining a request will remain unchanged. Employers will be required to explain why their reasoning for refusal applies. This could result in a surge that places strain on operational capabilities.
The needs of the business must be carefully balanced with the need to treat all employees fairly. It will be particularly difficult if multiple employees in a team all submit requests. If this isn’t managed correctly, there could be an increase in disputes.
The change could result in a risk of requests for four-day working weeks with compressed hours, giving rise to further considerations in how this can be reasonably addressed.

Solutions:

It’s vital for organisations to develop a clear, fair, and transparent flexible working policy that outlines the process for making requests and the criteria for approving or rejecting them, as well as understanding if these criteria can be considered reasonable and how they will be explained to employees.
Businesses should begin training managers to handle flexible working requests and managing teams with varied working patterns effectively.
Monitor the impact of flexible working on productivity and employee engagement to make informed adjustments to policies and procedures.
Ensure that comprehensive and well-considered feedback is provided in respect of any unsuccessful flexible working requests to minimise the risk of potential claims.
Ensure that evidence is available and collated to substantiate decisions around flexible working requests to best address any challenges.

3. Removal of the qualifying period for unfair dismissal claims

Changes to the qualifying period for unfair dismissal claims have been a significant talking point since initially proposed. Previously a 2-year qualifying period applied, but the Employment Rights Bill is now set to remove this. The impact will mean that all dismissals will have to be for a legally recognised “fair” reason, and after a “fair and reasonable” process.

However, the change only applies to employees, and not “workers”. It also does not apply to situations where an individual has been dismissed before they have started work (such as following an accepted offer of employment with subsequent withdrawal before commencement), unless the reason for dismissal falls within a number of specified reasons.

Recognising the potential burden on businesses, the government plans to introduce a statutory probationary period (query how this will be any different in reality to the qualifying period). The duration of the probationary period will be the subject of consultation, but the clear indication from the government in its Next Steps paper is that it will be 9 months.

The government have stated that they are currently proposing a “lighter-touch process” that applies to dismissals during the probationary period, but there are currently few details surrounding this in the Bill. It is expected to be at least a meeting to discuss the issues and dismissal, and a letter confirming the reasons for dismissal. This would be similar to what many organisations are already doing in practice now.

The government has said that the change will not take effect before the Autumn of 2026, and we are likely to see some transitional provisions in due course.

Challenges:

There will be an increased litigation risk with the potential for a rise in unfair dismissal claims – a surge could occur due to the lower barrier to bringing employment tribunal claims to employers.
Organisations will need to assess their hiring processes and consider how robust those processes are. A greater investment in recruitment will help to ensure only the right candidates are offered employment. However, whilst the intention of the change is to give more people access to jobs and to provide greater security, an unfortunate consequence might be a reduction in social mobility and inclusion if employers are less open minded at the recruitment stage.
Lapses in fairness, transparency, and documentation of recruitment processes means businesses may prove to be unequipped to defend against potential claims.
The Tribunal system is already struggling to cope with the volume of claims and it can take up to 2 years to get to a Final Hearing in most cases. Often witnesses have forgotten the events or even moved on to jobs elsewhere. This problem will only increase if there is a greater volume of claims which the system cannot deal with quickly.

Solutions:

It’s imperative that organisations begin to implement comprehensive training for managers surrounding fair hiring practices. Reasons for not offering jobs to candidates will need to be thoroughly articulated and substantiated by evidence to mitigate against the risk of claims, and inadvertent bias.
Establish clear, documented policies on conduct and performance management from the outset of employment, to provide greater protection and defensibility against potential claims.
Review and tighten any existing probationary processes to help identify potential issues with new hires early on. It’s also important to ensure that comprehensive feedback (supported by evidence) is provided on any failed probationary periods to ward off potential disputes.
Given the inevitable delays in the Employment Tribunal system and to deal with the issues of memories fading, employers should also consider asking managers and decision makers to write statements of their evidence/involvement in dismissals from the outset.

4. Strengthening redundancy protections with collective consultancy threshold changes

Redundancy protections are a key point in the Employment Rights Bill, with the removal of the reference to “one establishment” regarding the need for collective consultation. Currently, an employer will need to collectively consult and notify the Secretary of State when proposing to dismiss as redundant at least 20 or more employees at one establishment.

However, that threshold will apply across the entirety of the business with the removal of the “one establishment” requirement under the Bill. This means that the duty to collectively consult with workforce representatives or trade unions is triggered much more easily and frequently.

The Bill and Next Steps paper issued by the government also indicate a general movement towards collective bargaining to supplement the above change. It will become easier for collective bargaining units and trade unions to gain recognition, and there will be an obligation to inform employees (in their contract of employment) that they have a right to join a trade union.

There are also proposals to increase the protective award (currently 90 days gross pay per employee) which the Tribunal can make when an employer fails to collectively consult. The stakes are therefore likely to be much greater for getting it wrong.

As general counsel or part of an in-house legal team, you may need to support managers and the people team with industrial relations and consultations, ensuring systems are in place to track redundancy numbers and potential dismissals for changing terms and conditions of employment (which can also trigger collective consultation requirements).

Challenges:

The process when proposing a volume of redundancies, or when changing terms and conditions of employment, is already one with significant complexity. With the change, the complex, time-consuming nature of the process could dramatically increase with more frequent triggers and a need for constant monitoring.
This change signals a higher potential for the need for consultation – with extended consultations, necessary business restructures and changes to terms and conditions could be delayed, leading to a potential impact on the turnaround of cost savings and other outcomes.

Solutions:

GCs and in-house legal teams need to ensure that HR and legal teams are fully briefed on the new requirements and that they have robust processes in place to monitor and manage collective consultations.
It’s essential to engage with trade unions and employee representatives early in the process to foster a collaborative approach and minimise conflict.
Organisations must plan redundancies and changes to terms projects carefully to ensure compliance with the new laws whilst minimising disruption to the business.
With the changes due in 2026, there is time to put solutions in place and plan for the changes, as well as considering how best to prioritise any projects which may involve collective bargaining.

5. Empowering trade unions

As touched on above, the government will strengthen trade union rights, including access to workplaces and industrial action ballots. Overall, the Employment Rights Bill mas made a wealth of extensive changes to trade union rights and industrial action overall, such as the requirement for employers to provide workers with written statements of their right to join trade unions, the aforementioned “access agreements” between listed trade unions and employers, a provision for trade union representatives to have sufficient access to facilities (as well as time off rights for union equality representatives), and various other reforms.

The government want to utilise the changes set out in the Bill to simplify the process of statutory trade union recognition too, whilst a significant section in the Bill discusses a multitude of reforms surrounding industrial action, such as the law reverting to require a simple majority of those voting for a ballot conducted by a trade union for industrial action to be successful.

Challenges:

The empowering of trade unions may lead to an increase in overall union activity. This could spark a rise in unionisation efforts within businesses, particularly in sectors where wages are lower and turnover is higher.
The potential for industrial action is likely to be more frequent. The new strength of unions as a result of changes in the Employment Rights Bill means that strikes and other forms of action could pose and even larger risk of disruption to business operations.

Solutions:

It’s more important than ever to foster positive relationships with trade unions by engaging with them proactively and addressing worker concerns before they escalate.
Organisations should develop contingency plans to mitigate the impact of potential industrial action on business operations.
Ensure compliance with all legal requirements related to trade union recognition and collective bargaining.

Conclusion

These are just some of the key changes covered in Labour’s Employment Rights Bill. The Bill also discusses changes surrounding an employer’s obligation to take “all reasonable steps” to prevent sexual harassment of their employees, statutory sick pay will have the previous qualifying period of the first three days of any period of entitlement removed, current qualifying periods of employment for paternity and unpaid parental leave will also be removed to make them available from the start of employment, equality and diversity pay gap reporting, menopause action plans and much, much more.

Whilst the Bill may present several challenges for organisations, people teams, and general counsel or in-house legal teams, they also offer businesses an opportunity. One where they can improve their employment practices, leading to greater satisfaction and higher engagement and performance from their workforce – both of which offer unparalleled advantages to any organisation.

For general counsel and in-house legal teams not directly responsible for employment law, these changes will require a close partnership with your people and culture teams. This collaborative approach will enable you to ensure that the new legal requirements are understood and implemented effectively. Combined with a proactive approach, your organisation can navigate these changes smoothly, reducing legal risks and maintaining a positive workplace culture.

Regardless of whether employment law falls within your immediate purview or not, the changes could have a significant impact on many aspects of your role. It’s important to ensure that you have an understanding of the key changes and engage with your internal teams early to understand the potential impact for your organisation. You should consider seeking external advice if necessary to best prepare your organisation for the future and the extensive changes ahead.

If you have any questions about the points raised in this blog, please get in touch with our Employment and Business Immigration team.

Disclaimer: Anything posted in this blog is for general information only and is not intended to provide legal advice on any general or specific matter.

To sue, or not to sue, that is the question…

Clarion — 15/05/2025

Credit Managers want payments, Sales Managers want happy customers – where does the balance lie?

Every businessman and businesswoman will tell you that cash flow is king, however if you have no customers - you have no cash. Non-paying customers are a drain on your resources. If a customer isn’t paying what is due, you are essentially providing free goods/services! Clearly this is a situation no business wants, but is one that most are faced with at some time or another.

The Sales force would like a “softly softly” approach to keep customers sweet, with the hope of getting repeat business, but Credit Managers want payment now, realising that a non-paying customer isn’t necessarily one you want to pander to. There are some cases where you may allow more leeway for payments – i.e. if a customer is genuinely trying to work with you to reduce their indebtedness, but companies can be making a rod for their own back if they don’t have robust credit control procedures in place.

Escalating non-payments

If you have a non-payer, who is ignoring your credit control efforts, and you decide to escalate matters further by engaging solicitors to take up the baton, what considerations do you need to bear in mind?

Firstly, does your client have any dispute on the invoice? If so, then you should always attempt to resolve issues before passing the debt out for collection. Most solicitors charge on a time basis for dealing with disputes, so it is better to deal with this in house where possible-

Does your client have any money? Consideration should always be given to whether you are throwing good money after bad by continuing with action. The cost of sending a chaser letter is usually worth the initial attempt to see if your debtor will engage with the solicitors. A payment arrangement at this stage is better than getting nothing.

When to consider legal proceedings?

So now you have gone through all the pre-legal options and have still not recovered your money, do you continue and issue legal proceedings?

Being aware of the cost of proceedings can help you decide whether to continue with action. Some smaller businesses may be put off by the rising costs of issuing claims, however the alternative is to write off £££ in bad debts. If you consider a debt to be truly unrecoverable, then limiting your costs makes sense – but if you think it is a case of won’t pay rather than can’t pay, then issuing legal proceedings may be the only way to force a conclusion.

As with anything, knowledge is key. It may seem strange for a solicitor to be advocating not issuing proceedings (and thereby missing out on fees) however your advisor should always have YOUR best interests at the heart of their advice – even if it is not what you want to hear.

Decision

As ever, the decision whether to carry on with action is a commercial one, especially when the Court fees are rising almost yearly. The old adage of “he who shouts loudest gets heard first” does ring true. Getting your proceedings in at the first sign of payment problems generally gets you at the front of the queue.

If you have any concerns about the issues discussed in this blog or require further advice, our Debt Recovery team are here to help. Please do not hesitate to get in touch.

Disclaimer: Anything posted in this blog is for general information only and is not intended to provide legal advice on any general or specific matter.

Protecting your brand when exporting: Why it matters for UK companies

Clarion — 16/06/2025

Whilst it is undoubtedly exciting to launch your hard-earned brand in a new territory, protecting your brand when exporting products/services overseas is legally and commercially important. Your brand is one of your most valuable commercial assets. Here is why protecting it abroad is crucial.

1. Your UK registered Intellectual Property rights are not universally protected

Registered intellectual property rights, including trade marks, are territorial, meaning your UK trade mark offers no protection outside the UK. If you don’t obtain registered protection for your marks in the countries you are looking to export to (or currently are exporting to), you risk losing the right to use it there. Many countries follow a “first-to-file” system, allowing others to legally register your marks before you do. It is therefore vital that you take steps to register your marks in each new country as soon as possible.

2. Enhances market confidence

Registered trade marks in foreign markets not only protects your brand but also enhances credibility with local distributors, customers, and investors. It signals that your company is committed to the market and takes protecting its intellectual property seriously. Some distributors require you to register your trade marks, in the new territory, before agreeing to distribute on your behalf.

3. Prevents costly legal battles

Failing to register your intellectual property rights can lead to expensive and time-consuming legal disputes. Proactively registering trade marks reduces the risk of having to rebrand or litigate later, which can be especially disruptive when launching a new product overseas. If there are any third parties infringing your marks in an overseas country, it is much easier to rely on a registered trade mark to uphold your rights in the mark, rather than having to find other legal avenues which will be much harder to prove as well as being more time intensive and expensive.

4. Supports growth and expansion

Protecting your intellectual property rights makes your business more attractive to potential investors and buyers. It also opens the door to licensing and franchising opportunities, creating additional revenue streams from your export operations.

5. Protect your reputation

Each new international market presents its own risks to your brand, including imitation, trade mark squatting, and brand dilution. Without proper protection, opportunists may exploit your brand name or logo, leading to confusion among consumers and damage to your reputation.

6. Customs

Your registered trade marks can also be used as a helpful weapon to tackle possible infringing and counterfeit goods. You should record your marks at the local Customs (where possible) in order to challenge possible infringing and counterfeit goods.

Key steps to consider

Identify priority markets and check local IP regulations.

Register trade marks in each key export destination.

Monitor your brand for infringements with legal support.

Consider legal advice from IP professionals with international expertise.

If you have any questions about protecting your intellectual property and would like to talk to someone about it, please contact our IP Team.

Disclaimer: Anything posted in this blog is for general information only and is not intended to provide legal advice on any general or specific matter.

Family firms urged to get legal advice

Clarion — 02/01/2018

It can be a source of joy, strengthen your bonds, not to mention profitable to work with your nearest and dearest. But family businesses have their own idiosyncratic complexities entrepreneurs need to be aware of. Defined as any company in which two or more family members are involved, family businesses play a major part in the UKs economy.

Two-thirds of UK businesses, or 4.6 million companies, are family owned. They generate more than a quarter of the UKs gross domestic product and pay roughly £125 billion in tax: thats 19 per cent of UK government revenues. Family firms employ almost 11.9 million people in the UK, making up 47 per cent of private sector employment, said Justine Osmotherley of Clarion. As the number of family-owned businesses continues to grow, it is increasingly more important we turn our attention to the associated challenges from the outset, rather than wait for difficulties to arise.

Most problems could be avoided with proper planning. Honest and clear communication is critical to family business success, both in terms of inter-family and employee relationships. Successful family-owned businesses take great care to ensure they dont create a sub-class of employees who are not family. Irrespective of the balance between family/non-family in the organisation, it is essential to avoid special favours, promotions or benefits. It is also important not to take advantage of family members, particularly in relation to asking for excessive overtime or unpaid contributions.

It can be challenging to ensure fairness across the extended family unit, where individual circumstances can vary, so make time to negotiate overtime expectations across the business on an equitable and transparent basis. The most important thing was to manage family expectations, particularly if some family members have a more active role in the day-to-day running of the company, she added. There needs to be clarity as to each family members role, and a carefully drafted shareholders agreement can help achieve this. Such an agreement can also be useful to deal efficiently with any fall-outs which may arise within the business, providing a structured solution rather than the alternative of uncertainty and disarray. Issues such as marriage and divorce can also heavily impact on family owned businesses.

As well as the personal tensions they can cause within the business, if the legal position has not been considered, it can cause a whole host of potential problems, said Justine. She recommended family business shareholders get pre- and/or post-nuptial agreements drawn up, to provide certainty on what will happen to their shares in the event of a divorce. Its about protecting the future of the business, she said. Another point to consider is what would happen if a shareholder loses mental capacity. It is a common misconception that capacity issues only relate to the elderly, but it is an issue that could affect any one of us at any time, so shareholders should consider having a Lasting Power of Attorney put in place to deal with their financial affairs, said Viv Wild, partner in the private client team.

One of the biggest challenges family businesses can face is the death of a shareholder: losing a family member is hard enough, without having the extra pressures to deal with. There will be all kinds of questions. For example, how does a parent create equality between children who work in the business, and those who do not? This can be dealt with effectively through proper planning by means of a shareholders agreement and a Will which can complement each other to cover these issues. Couples who run businesses together face particular challenges: in addition to raising a family and navigating the changes in a relationship over time, they also have to handle the added stress of running a business.

Business-running couples need to find their own way to remain sane and happy within a work/life relationship. Some couples take responsibility for different parts of the business so that they are not working too closely together, for example, added Justine. Through clear communication and careful planning all the benefits of a family owned business are on offer. Often, through a longer-term approach to growing the business on a sustainable basis, family businesses appear less vulnerable to corporate dissolutions perhaps because they embrace more responsible capitalism.

They tend to avoid excessive debt, have lower staff turnover and take a sustainable approach to investment. In challenging economic times, family firms are often more resilient and are better placed for business recovery.

Clarion join the Made in Group's inclusion pledge

Clarion — 11/10/2023

Clarion is a patron of Made in Group and, in this capacity, the firm has signed up to Made in Group’s inclusion pledge. Sarah Tahamtani is head of Clarion’s Employment and Business Immigration team, having received recognition from leading legal directories such as Legal 500 and Chambers UK. Here we explore with Sarah why inclusion is central to everything the firm does. She also shares her tips for manufacturing firms interested in exploring inclusion and equity in the workplace.

Absolute sense

In August 2023, Clarion joined the ever-growing community of Made in Group members and patrons who have signed the Made in Group inclusion pledge. Sarah Tahamtani, head of their Employment team explains:
“Signing up to the Made in Group inclusion pledge only reinforces everything we're already doing around inclusion. It's good from two perspectives. Firstly, because it aligns with our values, demonstrating to our workforce what our values are and where we stand in terms of inclusion and diversity. Secondly, it makes good business sense. All of the data and research points to profitable high-growth businesses having a more diverse workforce, so it aligns with our values.”

What is inclusion in a legal sense?

“There is no legal definition of inclusion. The law focuses on what you're prohibited from doing, not what you should do to encourage inclusion, but sometimes those two things get confused. The legal obligation centres on ensuring that no one in the workforce is disadvantaged in any way because of a protected characteristic, but inclusion goes far, far beyond that.”

By way of a quick reminder, protected characteristics, as defined by the Equality Act, are:
• Age
• Disability
• Gender reassignment
• Marriage and civil partnership
• Pregnancy and maternity
• Race
• Religion or belief
• Sex
• Sexual orientation

Sarah goes on to explain: “It is probably simpler to start with what you can’t do and then explain what is best practice. In terms of what you can't do, the Equality Act sets down protection against detriment based on individual having protected characteristics. One that is commonly known about is ‘sex’ (or ‘gender), but ‘pregnancy and maternity’ is often also closely associated with that.
“There’s also ‘race’, ‘religion or belief’, along with others such as ‘age’, ‘disability’, ‘gender reassignment’, ‘marriage and civil partnership’ too. Some employers struggle to understand some protected characteristics more than others, which reflects the views of our wider society.

“As far as the law is concerned, the one that comes up time and time again is ‘disability’. The reason for that is because it's easy to fall within the definition for ‘disability’ and disability discrimination because the conditions are wide-reaching (either physical or mental) but they’re often not well recognised so most people will, without knowing it, fall into that definition.”
This is why employers need to familiarise themselves with their responsibilities in this area.

“The kind of claims that you can bring for disability are much greater than they are, for example, for ‘age’, ‘race’ or ‘sex’, so it's there's more potential for people to bring claims as there's more people who have that protected characteristic.

“Unlike say ‘race’, the health of your workforce fluctuates and changes over time, so that's probably the most complex to navigate.”

Enormous potential

But with the UK manufacturing sectors facing growing skills shortages as more of the existing workforce approaches retirement, wherever possible, it seems there is huge potential to make employment opportunities more accessible to disabled people, as well as other people with protected characteristics for that matter. A research briefing from the House of Commons library from June 2023 reports: “There were 9.58 million people of working age (16 to 64) who reported that they were disabled in January to March 2023, which is 23% of the working-age population.”

The UK Government published a Disability Action Plan consultation document on 18th July 2023, so disability is a hot topic. In August 2023, the Trade Unions Congress (TUC) declared that it’s now time to introduce mandatory disability pay gap reporting, following a report from the Equality and Human Rights Commission to the UN, which revealed that disabled people continue to be at disproportionately high risk of poverty and low income.

Keep it simple

Sarah reminds employers that there’s no need to overcomplicate things when it comes to the Equality Act though,
“With the protected characteristics in the Equality Act, what you can't do varies depending on which protected characteristic it is but, in a nutshell, in its simplest form, it's making sure individuals who have those characteristics don't face detriment, whether it's dismissal or otherwise. ‘Diversity’ and ‘inclusion’ are not legal definitions. They're more about good working practices and what you should do to promote these.”

It’s good to talk

According to Sarah, regular open communication is key to building trust between employers and their teams.
“It’s understandable that some employers to shy away from tackling these issues but that's where things go wrong. When people stop communicating and stop asking questions, almost not doing anything at all for fear of doing something wrong, but that's when people start experiencing different treatments.

“The best thing you can do is to respectfully ask questions, with the premise of trying to understand. So, if there's something that you don't understand, whether it's someone's religious belief or whether it's their gender reassignment or their disability, the best thing you can do is ask questions, being clear that you are asking with the right intention.

“Often people feel excluded or treated differently because employers not knowing what to do and then actually treating them differently by almost giving them a wide berth for fear of doing anything wrong, which is probably the worst thing to do.”

Encouraging open dialogue as part of the recruitment process

Sarah reminds us about the importance of putting in place some simple good practice right from the start when recruiting new employees too.
“When people ask about disabilities on recruitment forms more often than not candidates will say that they don't have one, they are appointed and then a condition will arise. If the employee only talks about the gravity of their condition when they've secured the role or are past their probationary period the employer may be frustrated that it hasn't been revealed earlier, which can erode trust.

“Maybe the reason for this is because there's fear of how the information is being used but it's important to create the environment for people to be able to share it with you in the first place. Candidates are probably not completely truthful because they're concerned that they won't get appointed. But if they're not truthful you don't have all of the information you need to make the adjustments you can to help make the appointment a success.”

Diversity as a superpower

Considering diverse talent is vital in order to expand the talent pool in the manufacturing sector so it’s key for employers to develop strategies around attracting diverse talent in order do it well. Sarah is passionate about making opportunities as widely available to as many people as possible.

“Maybe the way to start thinking about it is that everybody has a superpower, but a different superpower, and if you can just get the right people with the different superpowers together in the right combination, that's really impactful.

“Different people with different superpowers will be much more impactful and much more productive than having everyone who is the same in terms of their characteristics, as everyone has a different skill. The role of an employer or manager is to achieve the right combination in the jigsaw.”

Difference can be of a particular benefit to manufacturing, for example when it comes to neurodiversity. Sarah explains: “For manufacturers, the one of the best things they can do is develop a better understanding of autism, ADHD and dyslexia, and what those superpowers are as some of those characteristics lend themselves to manufacturing in particular. For example, people with ADHD tend to be less influenced by others and so they can have great attention to detail, meaning they tend to perform very well manufacturing roles.”

Striving to achieve equity rather than equality

When it comes to inclusion and diversity, it’s not about treating everyone the same though. It’s important for employers to familiarise themselves with these simple terms. Sarah clarifies:
“Think about having a race where everyone starts at the same location. This is ‘equality’. ‘Equity’ is where some people might get some assistance along the way, so the race might have staggered start times, for example. It's thinking about the disadvantage and then trying to eliminate it so far as you're able, so that there's a levelling of the playing field. It might mean doing more for some people than you would do for others.

“We were in tribunal, on behalf of a manufacturing client, not so long ago on a discrimination claim. The tribunal asked one of the witnesses, a senior manager from the client, what he understood in terms of equal opportunities. He said he thought it was treating everyone the same, but what the tribunal said was that he fundamentally misunderstood the purpose of equal opportunities.

“The tribunal was getting to ‘equity’ there, so, in that context, it was about a flexible working request for a mother and the manager said: “Well, if I grant it for her, I've got to grant it for everyone.” Fundamentally he’d misunderstood that because of her responsibilities (or her disadvantage) what had to be done was be more flexible, more accommodating and assist more than you would someone else who didn't have the same responsibility in that particular case. That's the difference between the two, but I think often looking at it over simplistically, employers will think that it's about treating everyone in the same way.

“So, going back to the analogy of starting the race at the same location, obviously that's helpful, and that gets you to one kind of equality, but actually in order for it to be equitable, you have to do a lot more for one runner than the other.”

Encouraging employers to put themselves in position of others

It helps for employers to be able to put themselves in the position of others. Male managers who are white, middle-aged and heterosexual might find a lot of protected characteristics don’t apply to them but it helps if they can relate to those that do. Back in 2014, the Workforce Gender Equality Agency in Australia ran a campaign to highlight how companies in which CEOs have daughters have lower gender pay gaps. Sarah points out the effectiveness of encouraging those in the majority to reflect on those closest to them:
“You may not have a protected characteristic yourself, but your teenage daughter might. Or someone in your social circle may have experienced sexual harassment or pregnancy discrimination. It will become more common across society so the issue becomes more familiar to more people.”

The other point to remember is intersectionality — the concept of people falling into more than one of the groups of protected characteristics. Sarah is pragmatic about this though:
“I would just advise not to become overwhelmed by intersectionality because you might find that the reality is that most of us all fall into one of the characteristics, certainly in terms of sex and nationality, whether we are married or we are not married, so everyone has one or more of the characteristics.“But I wouldn't want people to become overwhelmed with, in their minds, even subconsciously trying to label people. I think it's just about increasing your knowledge of your workforce. How much information do you know about your people and what motivates them? What are their strengths and weaknesses? Then, at the same time, it’s about empowering yourself with information about things like disability, and within that, with things like neurodiversity.

“The law is complex in relation to performance and disability, and in some contexts, there is the need to bring in legal advice, but most of the time it's just about being a good human being. My team and I are here to support Made in Group members as much as we possibly can. We do a lot of live webinars and run discussion groups around topics including equity and diversity, as well as recruitment and retention. There's lots of material readily available and I’m more than happy for people to get in touch if they've got a question.
“We facilitate discussions over lunches and dinners too if we have a group of people who are particularly interested in a subject and are finding it difficult. It's powerful to facilitate peer-to-peer learning. We will gather together a group of manufacturers who might have an issue that's particularly at the forefront of their minds. We have done these on issues such as the legal aspects of the skills gap, recruitment and retention and equity, diversity and inclusion. We’re here to help. Most of these issues are shared with others in the sector so collaboration can really help to break down barriers and to give employers the confidence to innovate.”

In conclusion, equity, diversity and inclusion can be real assets to your business. For Made in Group members who sign up to the inclusion pledge there is an exciting opportunity, not only to to fly the flag for inclusion, grow a diverse talent pool and acquire new skills, but also to gain a better insight into their client base. Hiring diverse talent helps companies not only to solve problems better but also to understand their customers better too, so a win/win as more firms realise the importance of valuing difference.

You can reach Sarah by emailing sarah.tahamtani@clarionsolicitors.com or calling 07789 961 705. You may wish to sign up to Clarion’s monthly update bulletin to stay up to date too. Read the latest issue here.

The Made in Group employer toolkit includes a range of high-quality 'Made' employer branding logos and assets. In addition, members gain access to valuable resources through the Made Platform, enabling them to post job vacancies on the Made Futures job board. The platform also offers a job vacancy template for creating customised social ads. By utilising these tools, you can effectively communicate your organisation's dedication to diversity and inclusion, both internally and externally.

Anti fraud clauses in commercial service contracts

Clarion — 28/07/2025

Starting 1 September 2025, large organisations must comply with new legal requirements concerning criminal liability for fraud pursuant to the Economic Crime & Corporate Transparency Act 2023.

Under these new requirements, organisations can be held liable if their associated persons commit fraud to benefit the organisation or its clients.

There is a statutory defence for in scope organisations if they can show that they had reasonable fraud prevention procedures in place at the time the associated person committed the relevant fraud offence.

Organisations should be assessing whether they are in scope and determining who their associated persons are. To demonstrate reasonable fraud prevention procedures, organisations will need to be able to display top-level commitment, carry out proper fraud risk assessments, train staff, conduct due diligence, monitor controls, and keep the whole system under review.

In relation to due diligence, effective use of appropriate anti fraud clauses in compliance provisions of commercial service contracts (with the ability to terminate in the event of a breach) will form an important part of an organisation's reasonable fraud prevention procedures defence. Organisations are therefore encouraged to review and implement such clauses where appropriate in their relevant contracts.

If you would like Clarion to assist with preparations for new prevention procedures, review your contracts or include additional anti-fraud provisions, please don’t hesitate to contact our Commercial and Regulatory teams who can support you with a connected approach.

In-person event: Building Safety Act Update - One Year On

Clarion — 25/03/2024

It has been one year since the Building Safety Act (BSA) came into effect on 1 April 2023, bringing additional duties and regulations enforced from October 2023. We are also one year on with our experience of the BSA.

Last year we hosted a sold-out half-day seminar that explored the initial introduction of the Act, one year on we’re bringing the construction industry together again to hear from experts on the new measures in place and how the Act has changed the industry. Our speakers will share their experience of working with the BSR on applications made under the BSR and how clients are taking this into account in their projects.

This seminar will also explore the impact of the legislation so far, including the new roles and responsibilities. In addition, we will discuss new key terminology, important considerations for new buildings and existing buildings, and the process for building safety certification.

This seminar is essential for clients, developers, NHS Trusts, manufacturers, contractors, surveyors, and individuals involved in the design, construction, ownership, operation, and management of buildings.

Register your free place here >>

Agenda

08:30 - 09:00: Registration and breakfast

09:00 - 12:30: Speaker sessions

12:30 - 13:00: Panel Q&A

13:00: Lunch

Speakers

Allan Binns, Safety Director - Ryder Architecture

Allan joined Ryder in 2018, bringing 15 years of experience in construction health and safety, having worked in a variety of sectors including education, healthcare, residential and commercial.

Allan is IOSH and NEBOSH qualified, and member of the APS East Midlands regional committee. Allan has overseen the integration of the principal designer role into practice, and continues to lead on health and safety initiatives.

Martin Taylor BSc, MRICS, PgDip, Executive Director - LABC and Building Safety Competence Foundation

Martin has delivered building control services for a wide portfolio of clients and work types including complex and more specialist buildings. This has included a period of time with a national approved inspector as their Regional Managing Associate, managing key national clients.

Martin coordinated LABC's responses to Dame Judith Hackitt's independent review of Building Regulations and Fire Safety and was a member of two of the Working Groups that informed both the interim and final report.

Martin is now part of HSE/DLUHC's Joint Regulators' Group and various supplementary working groups piloting the new regulatory tools and approached detailed within the Building Safety Act.

Jennifer Jones KC, Barrister - Aktin Chambers

Jennifer practises both domestically and internationally, with a particular expertise in multi-party TCC litigation and in international arbitrations in the fields of large construction projects and energy disputes.

Jennifer’s main areas of specialisation are construction and engineering, professional negligence and energy, and she also has valuable experience in disputes concerning the construction and enforcement of guarantees/ bonds and of jurisdictional and conflicts issues, which regularly arise as incidental to other matters. Her experience includes advising one of the participants in the Grenfell Tower Inquiry about its potential exposure.

Malcolm Hankey, Director - BlueLight Management

Malcolm is a specialist Project Manager, highly experienced in the management and delivery of major complex construction and engineering projects, with particular emphasis on project strategy/turnaround solutions for distressed projects, defects remediation, compliance solutions and legal/contractual disputes.

Malcolm has expertise in project delivery, commercial management, contract management, design management, defects management and legal management, providing a combination of services that deliver solutions to clients that are typically experiencing programme and commercial slippage or technical and/or contractual disputes.

Phil Morrison, Partner, Real Estate [CHAIR] - Clarion

Phil is head of Clarion's Construction team and is recognised to have expertise in dealing with claims relating to fire stopping and the defective cladding on buildings that have arisen since the Grenfell tragedy. He is dual-qualified in English and Scottish Law and has over 25 years' experience in both contentious and non-contentious matters in the construction industry. Clarion's construction team acts on behalf of clients in the public sector, developers, contractors, and sub-contractors supporting these clients in the use of JCT, NEC, FIDIC and PFI contracts, and more recently providing advice in relation to the Building Safety Act.

Over the past 18 months, Phil has presented to hundreds of people in the public and private sector about the evolving regulations as a result of the Building Safety Act.

Recent court case clarifies liability for cost of remedial work to Grenfell-style cladding

Clarion — 30/12/2019

Since the Grenfell disaster of 2017, there has been some confusion about who should bear liability for the cost of removing and replacing this type of cladding on other high-rise buildings.

It is official policy that combustible materials should not be used in or on external walls or in any attachments to those walls and the Government has committed to removing aluminium cladding material (ACM) from privately owned blocks at a cost of £200 million to prevent the risk of fire. A review of building regulations and fire safety in England in 2018 said the regulations were “not fit for purpose” and called for a “radical rethink” of the system. The Fire Service has said that the report from the first phase of the Grenfell enquiry made it “clear that the fire risk presented by flammable cladding can only be removed when the cladding itself is completely removed”.

A recent dispute relating to the cladding at two blocks of flats in Manchester has now been resolved by the Courts which found in favour of leaseholders and freeholders who were suing their insurer to recover the costs of fire remediation work.

For more information please see the full article.

Navigating Labour’s employment law overhaul...

Clarion — 17/07/2024

Less than two weeks after the 2024 General Election, the King’s Speech was read at the State Opening of Parliament today.

The King’s Speech outlined the new Labour government’s plans for the year.

From an employment law perspective, many of Labour’s manifesto commitments made an appearance - with a pledge to roll out legislative change within 100 days.

The main highlights are discussed below.

Key employment law changes to come

Committing to ensure workers are provided with a baseline level of security and predictability, Labour reiterated in the Speech that they will (in no particular order):

ban exploitative zero-hours contracts;
grant protection from unfair dismissal and entitlement to sick pay and parental leave from the first day of employment (subject to probationary periods to assess new hires);
end ‘fire and rehire’ and ‘fire and replace’ practices and replace the current statutory code;
make Statutory Sick Pay available to all workers from the first day of absence, by removing the lower earnings limit and waiting period;
make flexible working a default for workers from day one, with employers required to accommodate this as far as reasonable;
except in specific circumstances, make it unlawful to dismiss a woman in the first six months of her return from maternity/family leave;
introduce mandatory disability and ethnicity pay gap reporting for large employers (with over 250 people);
promote increased engagement and improved industrial relations with trade unions; and
introduce a duty to take all reasonable steps to prevent sexual harassment in the workplace.

The detail of these changes is still to be set out in draft legislation.

Notable omissions

Whilst some of Labour’s high profile manifesto commitments featured in the King’s Speech, others failed to make an appearance. Most notably:

Labour’s proposal for a single worker status, introducing a two-tier system where an individual is either a worker or genuinely self-employed;
the pledge to strengthen redundancy rights and remove the ability for an employer to define separate establishments within its business, triggering the duty to collectively consult more easily and frequently; and
a plan to give workers the right to “switch off” by disconnecting themselves from being contacted by their employer outside working hours.

The omission of these items from the King’s Speech does not necessary mean that Labour will not revisit them in the future.

It may be that they are not an immediate priority given the more complex nature, and that consultations might be likely in the future.

The new landscape

Labour have reiterated in the King’s Speech that they intend to implement “the biggest upgrade to workers’ rights in a generation”.

If successful, these changes will be introduced by Labour within their first 100 days of governing – likely to be October 2024.

Whilst the above proposals are positioned as creating a new partnership between business, trade unions and working people, much uncertainty remains. The fine detail is to follow in Labour’s draft legislation.

For now, it will be a case of watching and waiting for the draft legislation, but employers should certainly prepare for substantial change in the above areas.

If you have any questions about any of these proposed changes and how they will impact you and your business to get in contact with Victoria and the Employment team.

IP Rights: Updated UKIPO Guidance on Address for Service

Clarion — 10/01/2024

Understanding the updated UKIPO guidance

As of 1 January 2024, the UK Intellectual Property Office (UKIPO) has implemented updated rules regarding the Address for Service of EU-derived comparable trade marks and re-registered designs.

Comparable trade marks and re-registered designs pertain to rights automatically established post-Brexit, ensuring the ongoing protection of these former EU rights in the UK. The new rules require that holders of these rights must provide an address in the UK, Gibraltar, or the Channel Islands if a right is involved in contentious proceedings such as opposition, invalidity, or revocation.

Failure to provide a UK address by right holders, when proceedings commence after 1 January 2024, the UKIPO will notify the holder in writing of the requirement. The holder will be requested to provide a UK address within one month. If no address is provided within this timeframe, the proceedings may conclude without the involvement of the right holder.

Therefore, it is important for right holders to review their portfolio of comparable trade marks and re-registered designs to ensure a UK address is provided before any future contentious proceedings. This proactive approach mitigates the risk of delayed notification and/or the inability to defend the right in the UK.

For further discussion on any points raised in this blog, please contact Lindsey Wrenn or Sarah Molloy from our Intellectual Property team.

Disclaimer: Anything posted in this blog is for general information only and is not intended to provide legal advice on any general or specific matter.

Seminar Series - Business Resilience: Navigating an ever-changing landscape

Clarion — 13/04/2023

In an ever-changing business landscape, organisations of all sizes and across all sectors are potentially facing turbulence and disruption to their business models. From dealing with supply chain issues, labour/skills shortages, rising energy costs, cyber threats, through to inflation and ESG, the list goes on.

To support businesses, we are hosting a three-part seminar series focusing on core themes that will enhance your resilience and help protect your business. So, whether you are looking for tips for resilience or ways to enhance agility and growth strategies, we want to support you with strategy, innovation and growth to help you navigate an ever-changing landscape.

Across the three half-day seminars, you’ll hear insights from experts across many different organisations covering broad macro change dynamics, and digging into how these impact individual business functions, such as finance, people, strategy, sales and marketing, operations and IT.

Join us for one, two, or all three seminars. Secure your place today.

Seminar 1: Strategy & Innovation | Finance

This seminar will focus on ways organisations can strategically take advantage of challenging times to support growth and improve competitiveness. It will also explore the funding landscape and the different options available.

Register here.

Speakers

Richard Moran, Clarion

In this presentation, Richard will cover the importance of strategy and growth, whether that be organically or through acquisitions, to become more competitive.

Alex Golledge, Bank of England

In this presentation, Alex will provide an overview of the macro environment and the Bank of England policy to help organisations monitor changing economics dynamics in the business environment.

Esther Kirwan, Clarion

In this presentation, Esther will discuss the importance of innovation, new business models and new routes to market and how business need to remember to protect any changes they make.

Cat Smith, British Business Bank

In this presentation, Cat will share insights on the current funding landscape and how to secure funds to either help stabilise businesses through the difficult times, or to help them take advantage of the economic climate and use funding for growth.

Ryan Millmore, Clarion

In this presentation, Ryan will discuss the importance of having a financially well-run business and the common pitfalls we see from businesses that fall into financial distress and how to avoid these.

Stuart Nelson, Morrisons

In this presentation, Stuart will share his experience of the role procurement can play in helping businesses be in a better financial position. As businesses try to adapt to the unprecedented levels of change - those businesses that are lean and agile will survive and thrive – in particular those businesses that understand and optimise their supply chains will be the future winners. This session will provide a better understanding on how procurement plays a critical role in gaining competitive advantage.

*More speakers to be announced shortly

Seminar schedule

08:45 - 09:30: Registration, breakfast and networking

09:30 - 09:45: Chair introduction

09:45 - 10:45: Theme 1: Strategy & Innovation

10:45 - 11:15: Panel Q&A for Theme 1

11:15 - 11:30: Break

11:30 - 12:30: Theme 2: Finance

12:30 - 13:00: Panel Q&A for Theme 2

From 13:00: Lunch and networking

Registration

Don't miss out and secure your spot today. Spaces for this event are limited, and are served on a first-come, first-served basis. Due to demand we may have to limit spaces to a maximum of two representatives from each company.

Register here.

Business Resilience seminar series

Seminar 2: IT & Operations | Risk & Quality

16 May 2023

Click here for more information.

Seminar 3: People & Culture | Leadership, Purpose & ESG

06 June 2023

Click here for more information.

Business Immigration – what to expect in 2024

Clarion — 22/12/2023

Business immigration has become something of a hot topic in recent years, often making the headlines as businesses have grappled with various skills shortages and economic challenges. It remains a complex and fluctuating area, and 2024 looks set to be no different.

Whilst not all businesses may actively recruit overseas workers, all businesses are nonetheless required to engage with the Home Office’s illegal working regime, and failure to do so can have catastrophic consequences.

Right to work checks

All employers in the UK have a responsibility to prevent illegal working. This is done by conducting right to work checks before employing someone, to ensure that the individual is not disqualified from carrying out the work by reason of their immigration status. If an individual’s right to work is time limited, follow up checks may also be required.

Employers must do one of the below before the employee starts employment as a right to work check:

a manual right to work check;
a Home Office online right to work check (only available for non-British and non-Irish citizens at the moment); or
a right to work check using Identity Verification Technology via the services of an Identity Service Provider (only currently available for British and Irish citizens).

Importance

If a business conducts one of the above right to work checks and does so correctly, this will act as a defence against a civil penalty (known as “the statutory excuse”) in the event that an employee is found to be working illegally. If someone you employ does not have the right to work and you did not do the correct checks, or you did not do them properly, you may have to pay a significant fine.

For a number of years, the civil penalty has sat at a maximum but nonetheless eye-watering £20,000 per illegal worker. From early 2024, this will be tripled to the mammoth sum of £60,000 per illegal worker.

In addition, employers could face criminal penalties such as up to 5 years in jail and an unlimited fine if found guilty of employing someone they knew or had ‘reasonable cause to believe’ they did not have the right to work in the UK.

It is therefore of the utmost importance that employers rigorously carry out the correct right to work checks. Now more so than ever, the potential penalties will be highly detrimental to businesses, not only financially but also reputationally. For those who do actively recruit from overseas, it is also likely to result in the loss of significant investment and time, as well as impacting on other employees and areas of the business if a sponsor licence is revoked as a result of illegal working.

Upcoming changes

The Home Secretary has announced a series of restrictions aimed at reducing legal migration which are expected to come into force in April 2024.

These are:

the salary threshold for Skilled Workers will increase from the current £26,200 to £38,700, which is an increase of almost 50%;
although employers who rely upon health and care visas will escape the above change, employees who come into the UK as a care worker under this route will no longer be able to bring their families with them;
the Shortage Occupation List, along with its 20% salary reduction, will be abolished, to be replaced by a smaller list of occupations with a discounted general salary threshold;
the salary threshold for family visas will also be increased significantly. We don’t yet know if this will be accompanied by an additional increase to the income requirements for sponsoring children;
the Immigration Health Surcharge, payable by visa holders to grant access to the NHS, will increase from £624 to £1,035 for each year of their visa; and
the Graduate visa route is to be reviewed.

These changes come as a worrying development for many businesses still facing and adjusting to skills shortages in the wake of Brexit, many of whom welcomed the reduction in salary threshold which accompanied the introduction of the new points-based system in 2021.

However, amongst the new stricter series of restrictions to legal migrants, there is also a silver lining for businesses. The Home Office recently published updates to the Immigration Rules which expands the range of business activities visitors are allowed to do in the UK from 31 January 2024.

To find out more, join us for a lunchtime webinar on 11 January 2024 for further discussion on the anticipated changes and what businesses can be doing to prepare. Click here for more information and to register.

If you have any queries or would like to discuss these issues further please contact our business immigration experts Suzanne Treen and Anna-Elise Harvey

Disclaimer: Anything posted in this blog is for general information only and is not intended to provide legal advice on any general or specific matter.

Webinar: Supporting Business Recovery

Clarion — 26/10/2020

The impacts of the COVID-19 pandemic have left few sectors unscathed. In our efforts to limit the spread of the virus, businesses have been required to stop or significantly reduce trading, office roles are still largely being carried out from home and travel has vastly decreased. While the full impact on economy is still unknown, the economic impact on many businesses and sectors will be significant. Furthermore, the future of some of the schemes intended to support struggling businesses is currently unknown.For our next webinar, we are bringing together experts from across Clarion to provide insights as to the support available for businesses to help them recover and thrive.

Speakers

Marie Pugh, Partner, Banking and Finance, will discuss access to funds, refinancing and managing relationships with your incumbent lenders.
Natalie Saunders, our Director of HR Consulting, will talk about how to design and deliver an effective restructuring or redundancy programme and minimise risks to company performance.
Sophie Morley, Partner, Real Estate Litigation, will discuss the workable solutions for tenants and landlords and the implications for businesses when the moratorium is lifted. She will also discuss what to consider legally when looking at future space requirements.
Matthew Hattersley, Partner, Commercial, will discuss the importance of having enforceable ROT clauses in agreements and the features that can improve the likelihood of recovering your unpaid goods from an insolvent customer.
Alice Pratt, Partner, Business Restructuring and Insolvency, will provide insight as to what she is currently seeing in the market, the actions companies can take when facing financial distress and what opportunities it may present to those well-placed to weather the storm.

To book your place please click here.

If you have any questions regarding the event please contact lauren.perry@clarionsolicitors.com.

New Code on “Fire & Rehire”

Clarion — 05/08/2024

Before the General Election, the Conservative government introduced a new statutory Code aimed at regulating the use of “fire and rehire” practices.

The practice of “fire and rehire” is where an employer dismisses workers and immediately offers them re-engagement on alternative terms and conditions, or sometimes the employer might hire new (sometimes cheaper) workers who are prepared to agree to the terms and conditions.

It is a robust way of changing terms and conditions where workers are likely to resist, or where the change has to be made quickly – usually in circumstances of financial distress.

Back in 2022, P&O Ferries dismissed 800 people without prior consultation. The publicity around this event was particularly adverse and prompted the former government to launch a consultation. The output was the Code.

After some back and forth, the finalised Code eventually came into force on 18 July 2024.

The Code is designed to encourage employers to behave fairly and reasonably when seeking to change terms and conditions. It includes a step-by-step process that employers should follow.

In summary, the Code requires meaningful consultation to explore alternative options, and it prohibits undue or unduly premature threats of dismissal to obtain agreement to proposed contractual changes.

Ultimately, the Code is aimed at ensuring the practice of “fire and rehire” is always a last resort.

The Code has been widely criticised as lacking any real teeth because a breach of it will not result in a freestanding legal claim.

However, where there is an existing claim such as unfair dismissal, the Employment Tribunal will be able to award a compensatory uplift of up to 25% in respect of any unreasonable failure of the employer to follow the Code.

This financial consequence is consistent with any breach by an employer of the ACAS Code on grievance and discipline. However, it doesn’t extend as far as inflating the protective award for any failure to collectively inform and consult on any proposed contractual changes.

The new Labour government was critical of the Code prior to the General Election, but it did not block its implementation on the basis that it offered at least some improved protection for workers.

In an address on 18 July 2024, Labour reiterated its pledge to replace the Code with a strengthened version within 100 days of office. The detail is yet to be released but watch this space.

For now, anyone considering making changes to terms and conditions should exercise caution. Employers are encouraged to take advice before proceeding to minimise the risk of Employment Tribunal claims and increased financial exposure as a result of the Code or any successor version(s) of it.

If you have any questions or need advice get in contact with Victoria and the Employment team.

Disclaimer: Anything posted in this blog is for general information only and is not intended to provide legal advice on any general or specific matter.

Workplace harassment - the impact of Brexit

Clarion — 04/04/2019

In the weeks following the EU referendum results on 24 June 2016, there was a spike in racially motivated violence and hate crime across the UK, both in public and on social media, with over 3,000 allegations recorded.

Police reports showed a 42 percent increase in hate crimes in the period following the announcement of the results, with authorities believing it to be the worst spike on record. Crimes of harassment, threats and racial abuse were aimed at visible minorities like migrant workers, refugees, Muslims, and people from Eastern Europe.

As is often the case, harassment in the streets or online tends to filter into the office as well and people also complained of racial harassment at work. Furthermore, HR-24.co.uk, an online resource that specialises in HR news and legislation updates, reported “a definite upsurge in issues for employers in managing with diversity in the workplace issues in the build up to the referendum and since the leave votes.” In fact, some workers have also protested that they’ve been ostracised at work due to their political views surrounding Brexit, with some employees reporting harassmentby Remain colleagues upset at the outcome of the referendum and angry with how they voted.

Given this, and how closely the surge in harassment in 2016 was associated with the results of the referendum, it’s reasonable to anticipate that something similar may happen when (or if!) the UK finally leaves the bloc. If you’re an employer, you should be aware of this and plan accordingly for a possible rise in workplace harassment – and now is the time to do it.

Employer liability

According to the Equality Act 2010, as an employer, you are liable for the actions of your employees in relation to other staff - even if you don’t condone the employees’ actions. There is a statutory defence, if you can show that you took all reasonable steps to prevent discrimination from occurring. However, you would have to be able to show you took reasonable steps to protect staff before any discrimination occurred and acted quickly and fairly as soon as any workplace harassment was reported to you.

Workplace harassment - What employers need to do to prepare

You must be able to show you took active steps on an ongoing basis to prevent discriminatory behaviour in the workplace. To do this, we recommend such actions as ongoing diversity awareness training, including modules on equality, diversity, anti-discrimination legislation and information on your staff’s rights and responsibilities when it comes to reporting harassment. You might also want to consider incorporating the issue of harassment into other areas of workplace training, covering such areas as communication, unconscious bias and performance management.

Now would also be a good time to make sure your anti-discrimination and anti-harassment policies are up-to-date and redistribute them to all staff, reminding them that any breach of these policies will be a disciplinary matter. They should also be easily available to staff on your company’s intranet and other communication channels, such as noticeboards and the employee handbook. The policies should also outline your grievance procedures and whistle-blowing policy, including such relevant information as a whistleblowing helpline, if you have one. If you don’t, it might be worth considering setting one up, to make reporting workplace harassment as easy as possible for staff.

Policies should also clearly outline the exact process, and timescale, that will be followed in the case of a complaint, and the type of support available to staff, including mediation, counselling and appropriate training. It would also be advisable to make sure there are additional support mechanisms in place for both the complainant and the potential perpetrator while any investigatory process is ongoing.

Getting your culture right

Regular and anonymous surveys of staff will help to identify areas of your business that might be at risk of discriminatory behaviour. This is part of making sure the culture of your business is inclusive and supportive, and reflects the equality and diversity of your workforce in a positive and meaningful way. Initiatives like workplace equality and diversity days to help champion your commitment to a cohesive and equality-based workplace culture may also be worth considering. Make sure your senior managers and leadership team establish and emphasise a zero-tolerance approach to discrimination, making it clear that workplace harassment is unacceptable. Managers should also be reminded to be on the look-out for any problems and prepared to deal with them in an effective, timely and non-judgmental way.

Currently, very few employers are doing enough to rely on the statutory defence to shield themselves from liability if an employee complains about discriminatory behaviour. Make sure you are doing as much as possible to protect and prepare your staff before it’s too late – when, or even if, Brexit occurs.

If you have concerns about workplace harassment or discrimination in the workplace, please contact our Employment Team.

Inclusivity Conference

Clarion — 03/10/2018

On Tuesday 18 September, Clarion was delighted to host the inaugural Made in Group Inclusivity Conference.

The Made in Group is an umbrella organisation of regional manufacturing and engineering bodies and includes Made in Yorkshire, a dedicated membership group for Yorkshire’s manufacturing base. Clarion is a proud patron of Made in Yorkshire.

The Inclusivity Conference is part of the Made in Group’s Inclusivity Campaign, which aims to provide employers with the knowledge and tools to improve inclusivity and diversity within both their workforces and their working practices. Recent data shows that 87% of manufacturing companies do not have LGBT/BAME diversity initiatives in place and only 15% make particular efforts to attract and retain women.

At the Conference

The Conference, an all-day event, brought together Inclusivity Ambassadors from across Yorkshire and the Midlands to share their best practice with the attending delegates.

Speakers included Stacy Denton-Beaumont from Boneham and Turner Limited, a leading manufacturer and supplier of tooling components and precision engineered components in the UK. She spoke about employee engagement, creating a cultural shift in the way organisations behave and the benefits this brings to a company.

Founder of the National Diversity Awards, Paul Sesay, discussed the importance of role models within an organisation, who can model the correct behaviour for others and help promote inclusion.

The third speaker was Richard Cowlishaw from Clipper Logistics, which has recently rolled out its Fresh Start Programme, which encourages companies to hire those with disabilities, ex-offenders, full-time parents, retirees, refugees and those who were in the military or used to be homeless. As a company, Clipper Logistics also practices what it preaches, hiring 75 ex-offenders to work for them. As part of his presentation, Richard talked about the organisational barriers to employing ex-offenders and how businesses can overcome them.

The final speaker of the day was Clarion’s very own Sarah Tahamtani, a Partner in our employment team. She discussed the steps that an employer should take, from a legal perspective, to increase inclusivity in the marketplace, touching on the basic legal principles of the Equality Act 2019, including protected characteristics and the different types of discrimination. Sarah also provided recommendations for unconscious bias training and how businesses can develop a mindset of inclusion amongst employees.

Throughout the day, interspersed with the speakers, group discussions were held, which allowed attendees to tackle issues and to come up with practical steps to become more inclusive.

The groups then met back up to share their thoughts with the rest of the room and contribute to a wider discussion of the topic at hand. This allowed for wide-ranging conversations, that drew on participants’ professional - and personal – experiences and allowed attendees to get some new perspectives on the issue of inclusivity.

Chrissie Gale, Director of Inclusivity, Made in Yorkshire said, "The event builds on the success that we are seeing with companies taking part in our Inclusivity Campaign. Sharing best practice is by far one of the most effective ways for companies to become more inclusive; positively impacting on the bottom line."

Energy in manufacturing – energy procurement strategies and structures

Clarion — 01/10/2025

Part 2 – Alternative procurement and supply structures

In our previous article, we discussed some of the more traditional utility supply models. From fixed price and flexible supply models to group purchasing contracts, traditional methods are often the most common approach manufacturers take. However, alternative, sometimes more creative, procurement and supply structures have become an increasingly common choice for countless organisations, with businesses exploring more innovative ways to buy or secure energy to combat growing pressures around costs and sustainability.

These alternative procurement and supply structures can sometimes present some additional complexity when compared to traditional contracts, but they also offer a range of unique long-term benefits that manufacturers can take advantage of, including cost stability, emissions reduction and improved supply security. The key to making these models work is developing a firm understanding of them and where they may be appropriate.

Power Purchase Agreements and Corporate Power Purchase Agreements (PPAs/CPPAs)

Power Purchase Agreements (PPAs) or Corporate PPAs (CPPAs) come in a few different shapes and sizes. Essentially, these agreements are long-term contracts directly between an energy generator (often a renewable energy generation project, such as wind, solar or bioenergy) and a corporate buyer (i.e. a manufacturer). They work by enabling the buyer to secure a direct agreement for power over an extended period, often 10 years plus, rather than buying energy directly from a licensed utility supplier.

PPAs can take a few different forms such as “private wire” or “onsite” PPAs, “sleeved” PPAs or “virtual/financial” PPAs.

These PPA models provide manufacturers with some unique benefits such as:

Price certainty and protection from market volatility.
Enhanced ESG credentials and renewable energy visibility.
The ability to secure long-term energy supply aligned with net-zero strategy and goals.

However, there are also risks and considerations for manufacturers when it comes to PPAs and CPPAs such as the long duration of the contract or generator credit and counterparty risk to name a few.

In our next article, we will be discussing PPAs and CPPAs in much greater detail, so keep an eye out for our next part in the series to find out more about the benefits and considerations of PPAs and CPPAs as a procurement model.

On-site generation and Energy as a Service (EaaS) model

Some manufacturers may have sufficient space at their site(s) and demand or suitable load profiles to opt for on-site energy generation. This can be a highly attractive option which provides access to technologies such as solar photovoltaic (PV), wind turbines, bioenergy, combined heat and power (CHP) often combined with energy storage (including commercial battery and hydrogen) or specific long duration storage technologies.

Manufacturer’s considerations mainly fall into two broad categories – on balance sheet solutions or off balance sheet solutions. Generally an on balance sheet model is where the manufacturer finances the energy generation/storage equipment and installation upfront, whereas the off balance sheet option allows for a capex free model where the generator/equipment operator finances, installs and operates the energy generation/storage equipment whilst the customer (i.e. the manufacturer) pays a wrapped-up price for the energy which they receive as a service. We have outlined some key differences between the two models further below.

On balance sheet solution

Under this model, a manufacturer usually funds, owns and operates generation and/or storage assets and infrastructure directly. Depending on the type of generation and/or storage assets, a manufacturer may enter into a separate operation and maintenance contract with the original equipment manufacturer (OEM) or other third party operation and maintenance company and, depending on the type of arrangement, a third party may take responsibility for the asset’s performance as well as maintenance. Capital expenditure will often be on balance sheet and paid either up front or in certain stages by the manufacturer.

It’s a model that provides a clear advantage in terms of long-term cost savings, as once the initial capital is invested, the cost of generation can be significantly lower than paying grid prices and be exposed to or partly exposed to utility price volatility (for example when installing a CHP engine which produces electricity and heat, however is still dependent on natural gas, hydrogen or other fuel input and such input fuel may still be subject to price volatility). This models also gives manufacturers the opportunity to claim, dependent always on the type of generation/storage asset) associated benefits such as Renewable Energy Guarantees of Origin (REGOs) or other green or carbon certificates, which can help to strengthen ESG credentials, support sustainability and net-zero strategies, and reduce emissions related costs to the business.

However, it is a model with clear downsides as well, including high upfront costs, ongoing operation and maintenance costs as well as operational risk of equipment/systems failure. Manufacturers may not be prepared to pay a large amount of capital for certain generation/storage assets if there is no clear mid- or long-term strategy for the manufacturer to remain in the same location or where the manufacturer wishes to sell or transfer sites out of the business on which the relevant generation/storage equipment is to be located. Owning and operating on-site generation/storage equipment outright usually means having a need for internal expertise to operate, manage, maintain and optimise the generation/storage system effectively.

Then there’s the legal side. From a legal perspective, manufacturers need to be able to navigate complex planning, permitting, consenting and grid-connection requirements, supply and installation and works contracts together with the relevant warranty and guarantee provisions as well as ensuring health and safety and compliance with environmental regulations. Generally, that means this model is one that works best for larger, well-capitalised businesses who have predictable energy demand, a desire to remain at the same location for a long time, and the desire to take on long term ownership of the generation/storage equipment.

Off balance sheet solution

In contrast to on balance sheet solutions, off balance sheet models enable a manufacturer to use a third party, often a specialist energy services company (ESCO) to finance, own and operate the energy generation/storage equipment and infrastructure. The manufacturer usually makes available their land on which the energy generation/storage equipment is located and essentially buys the energy produced by the generation equipment “as a service”, meaning that instead of paying for the energy generation/storage equipment itself, they instead pay a price, which can be regular fixed fee (i.e. monthly), usage fee, combination of the two etc., for the energy output under a long-term supply arrangement. This removes upfront capital requirements of an on balance sheet model whilst simultaneously helping to improve cash flow and shift operational and performance risks onto the ESCO.

It's often an attractive option for manufacturers who may have limited capital or do not want to take on the risks of ownership. But there are trade-offs. Contract structures can often be complex with long-term obligations that can reduce flexibility, and the pricing can sometimes be less favourable over the lifetime of the agreement compared to owning generation assets outright. It is also essential to carry out careful legal due diligence to ensure clarity on performance guarantees and triggers to entitlement to financial compensation for not achieving key performance indicators (KPIs) for performance, asset availability, or other KPIs such as maintenance standards as well as to determine liability for asset downtime and types of financial losses of the manufacturer.

Manufacturers need to clearly understand their obligations in relation to such arrangements. For example, it is not uncommon that an ESCO will require a manufacturer to provide its own fuel input (i.e. natural gas for CHPs) and this will keep manufacturers exposed to market price volatility for input fuel. Manufacturers should also look out for exclusive offtake provisions and liabilities which may come with such provisions, as well as termination consequences as ESCO’s will require to be kept financially whole should the energy services provision be terminated for any reason.

Both approaches outlined above (or further developed hybrid solutions of such approaches) can deliver real value to manufacturers, but they each involve very different considerations, including the manufacturer’s appetite for taking certain risks. For those weighing up these options, it’s essential to assess all angles including not only cost implications but also energy regulation matters relating to the generation, distribution, storage and supply of energy (including dealing with any excess energy or any back up and top up energy which may be required from a licensed supplier from the licenced grid networks).

Aggregation, demand side response (DSR), demand flexibility service (DFS) and other balancing/ capacity market service contracts

Many manufacturers are now beginning to opt in for participation in flexibility markets through aggregation and demand side response (DSR), demand flexibility services (DFS), or other types of flexibility, balancing or capacity market services arrangements. These approaches allow businesses to adjust their energy use to support grid stability and grid balancing, as well as creating additional revenue streams for the business by either using their existing assets such as back up energy assets to generate and export to the wider grid or to reduce their own energy requirements on site and potentially reducing their own costs in the process.

Through aggregation, multiple businesses pool their flexible capacity, such as having the ability to pause production or draw power from on-site storage/generation, so that an aggregator can trade it as a single block in the market. This makes flexibility accessible even for manufacturers who might not be able to meet capacity thresholds on their own.

DSR or DFS contracts act as a way to formalise this arrangement. These contracts involve manufacturers agreeing to reduce or shift consumption (load shifting) at times of peak demand or system stress, and in return, they receive a payment or reduced network charges. It’s a financially attractive solution, but these agreements do come with obligations. For example, under-delivery can result in penalties, so businesses need to carefully assess which processes can realistically provide flexibility without disrupting their production schedules.

Organisations also need to think about the significant legal considerations. Aggregator agreements need to clearly set out risk allocation, revenue sharing, and termination rights. Also, flexibility contracts need clarity around performance metrics, availability windows, and compensation mechanisms. Then there are further issues around competition law and operational alignment, which are vital for manufacturers to address before committing to a particular service.

However, for those who are able to participate, aggregation, DSR, DFS or other flexibility or capacity market services can provide not only an extra revenue stream, but also a way to demonstrate resilience and can contribute to the UK’s low-carbon transition and businesses own sustainability strategy and goals.

Making the right choice

As with any strategic decision, choosing whether an alternative energy procurement model is right for your business needs careful consideration. After all, these are models that can unlock significant value for you as a manufacturer, but it pays to make sure you plan carefully and negotiate effectively. Whatever route you take, you should spend the time on financial and legal due diligence to make an informed choice for the business.

As the energy landscape continues to evolve, the models we’ve discussed in this article are likely to continue growing in prominence but also evolving. With the right advice, you can take advantage of the opportunities they present (short term or long term), whilst also ensuring you are protected against potential risks. If your business is looking to explore new energy procurement models, our Energy, Infrastructure & Projects team can help navigate you through various options. Our specialist team can help you assess your options and begin to future-proof your procurement strategy. Don’t hesitate to get in touch with us to find out how we can help you, even if you use us just as a sounding board.

Mental health in the workplace

Clarion — 06/04/2022

Mental health should be high on the agenda and considered by all companies in all industries, including manufacturing. It can affect one in four people at some point in their lives and have a significant impact on employee wellbeing. Employers should promote good mental health as well as providing support when an issue emerges.

On Tuesday 8^th March 2022, Clarion and Q5 hosted an evening with Mental Health charity Mind’s CEO Paul Farmer, to discuss the topic of mental health in the workplace, the event was held at Q5’s London office Thorney House in Westminster.

To a packed room of attendees, Paul, co-author of Government review 'Thriving at work, shared some invaluable insights around mental health and wellbeing in the workplace; selected key themes included:

Mental health costs employers between £33 billion and £42 billion a year, with an annual cost to the UK economy of between £74 billion and £99 billion.
Investing in employee’s wellbeing is not only a moral obligation but also a commercial necessity as mental health is a potential key variable which can impact on their business, both positively and negatively.
The importance of empowering employees with the toolkit to manage their own mental health supported by the organisation's own plans and processes.
The benefits of upskilling management with the ability to identify colleagues who may be suffering with the skills to offer signposting and support.

“Paul shared with us that that 1 in 4 people experience a mental health problem in any given year. Whatever the size of your workforce that is a significant percentage and will have an impact on your business. Employers do therefore have a role to play in providing that support. After the past two years we have all experienced and the continuing uncertainly the world is facing now, employers need to think differently than they did three years ago and consider the impact this has had and continues to have on our people.

Some of these conversations might be difficult and challenging but they definitely mean you are moving in the right direction if they are taking place.” Sarah Tahamtani, Partner, Clarion.

“Paul’s discussion around mental health in the workplace brought to life just how important people’s wellbeing is to an organisation. Organisations need to have continuous plans in place to monitor and support their employee’s mental health, not only as a moral obligation, but also to address the economic variables that can affect a business if this isn’t looked after. Employees should feel safe enough to come to leaders with any issues and be encouraged to think about what they can personally do to help themselves optimise their own mental health. Leaders need to be proactive and visible when speaking about mental health in the workplace. This fosters an environment of psychological safety, where, people can then be encouraged to create their own positive mental health plan. Those in authority should be encouraged to talk about their own mental health journeys to normalise and open conversations around mental health.” Annabel Tonge, Director, Q5 Partners.

Clarion, Q5 and Mind therefore encourage organisations to sign up to the free Mental Health at Work Commitment, to action this please click here.

You are also able to benchmark your organisation’s performance on mental health via the Mind Workplace Wellbeing Index here

Disclaimer: Anything posted in this blog is for general information only and is not intended to provide legal advice on any general or specific matter.

The Labour government's employment law changes: A guide for GCs and in-house legal teams

Clarion — 24/09/2024

With the newly elected Labour government, the UK is set to see a new era of proposed employment law reforms. The government aim to reshape the workplace landscape significantly, addressing various employment issues and challenges whilst giving employers several considerations for procedures and policies.

As general counsel or part of an in-house legal team, the proposed changes could have a substantial impact on your organisation’s operations, risk management, and overall legal strategy – even if employment law isn’t within your direct remit.

That’s why understanding the changes is crucial. That understanding gives you the tools and knowledge needed to provide effective support to your people & culture teams, but it also allows you to anticipate the wider business impacts. And that means your organisation can safely navigate the potential challenges whilst remaining compliant with the evolving legal environment.

Below, we have summarised some of the key changes proposed. At this stage, the details are still to be announced by the government but we hope that our summary gives you a flavour of the steps that you and your organisation may need to consider.

1. Day-one rights for unfair dismissal

The introduction of day-one rights for unfair dismissal is a significant proposal. With current legislation, employees are required to work for a company for two years before they can claim unfair dismissal. This change would allow employees to bring claims against their employer from their very first day of employment, subject to fair and transparent probationary periods.

Potential issues:

An increased litigation risk: Should the change come to fruition, employers may face a surge in employment tribunal claims. This is due to a much lower barrier to bringing these claims.
A greater need for robust hiring processes: It’s essential for employers to ensure that their recruitment processes are fair, transparent, and well-documented. This enables organisations to remain well-equipped to defend against potential claims.

Resolution:

Implement comprehensive training for managers on fair hiring practices.
Establish clear, documented policies on performance management from the outset of employment.
Review and possibly tighten probationary processes to identify potential issues early on, and ensure that comprehensive feedback (supported by evidence) is provided on any failed probation to ward off potential disputes.

2. A ban on zero-hours contracts

The government plans to ban what they describe as “exploitative” zero-hours contracts to provide workers with increased predictability and security. This includes ensuring reasonable notice of shift changes and compensating workers for last-minute cancellations.

Potential issues:

A change in operational flexibility: For businesses that rely on zero-hours contracts for fluctuating demand, which can be a prevalent occurrence in certain sectors, organisations may find it challenging to maintain the same level of operational flexibility.
An increase in costs: With employers being required to move to more permanent contracts, that could result in an increase in labour costs due to the need to offer guaranteed hours, even during quieter periods.

Resolution:

Explore alternative staffing models, such as part-time contracts or fixed-term arrangements, that offer some flexibility while providing more security to workers.
Engage in workforce planning to better predict and manage staffing needs without relying on zero-hours contracts.
Consider the use of temporary staffing agencies to manage short-term fluctuations in demand.

3. Prioritising work-life balance with flexible working as a default

It is expected that flexible working will become the default from day one for all workers. Employers will be required to accommodate flexible working requests as far as reasonably possible. Additionally, the government have tabled the introduction of the 'right to switch off,' preventing work from encroaching on personal time – a practice inspired by laws in Ireland and Belgium.

Potential Issues:

Operational strain from managing requests: Should the change of flexible working becoming a day-one right be passed, organisations are highly likely to see an influx of requests. This surge could place a strain on operational capabilities, creating challenges.
Compressed hours requests: The change could result in a potential risk of requests for four-day working weeks with compressed hours.
Ensuring fairness: The needs of the business must be carefully balanced with the need to treat all employees fairly. If this isn’t managed correctly, there could be an increase in disputes.

Resolution:

Develop a clear, fair, and transparent flexible working policy that outlines the process for making requests and the criteria for approving or rejecting them.
Train managers to handle flexible working requests and manage teams with varied working patterns effectively.
Monitor the impact of flexible working on productivity and employee engagement to make informed adjustments.
Ensure that comprehensive and well-considered feedback is provided in respect of any unsuccessful flexible working requests, to minimise the risk of potential claims.

4. The right to disconnect

The government have proposed a “right to disconnect – a right that would protect employees from being required to engage in work-related activities outside of their contracted hours. This proposed change is a further method of reinforcement for the government’s plans to prioritise employees’ work-life balance amid growing concerns about the encroachment of work into personal time, particularly with the rise of remote working.

Potential Issues:

Challenges with enforcement: It can be quite a complex process to define what constitutes as “work-related activities”, but even more so to enforce it. It becomes even more complicated when roles where out-of-hours communication is common become involved.
A cultural shift: If this change were to happen, then there would be a need for a significant cultural shift within organisations. Many organisations, particularly those that operate across different time zones, have a culture of constant or frequent connectivity which would need to be considered.

Resolution:

Clearly define working hours and expectations regarding out-of-hours communication in employment contracts and policies.
Use technology solutions, such as email scheduling tools, to prevent out-of-hours communication from reaching employees.
Promote a culture that values work-life balance, with leadership setting an example by respecting the right to disconnect.

5. Strengthening redundancy protections

Redundancy protections are also on the list of priorities for the Labour government, particularly with plans to expand the scope of collective consultation requirements. With current legislation, collective consultation is triggered when 20 or more employees may be at risk of dismissal within a single establishment. A single establishment has historically been used to limit triggers for collective consultation by site or business unit. But with the new law, the current threshold could potentially apply across an entire business meaning that the duty to collectively consult with workforce representatives or trade unions is triggered much more easily and frequently.

Potential issues:

An increase in complexity: The process when proposing a volume of redundancies or when changing terms and conditions of employment is already one with significant complexity and time intensive. With the change, the complex, time-consuming nature of the process could dramatically increase.
Higher costs: The change signals a higher potential for the need for consultation – with extended consultations, necessary business restructures and changes to terms and conditions could be delayed (meaning that cost savings might also be delayed in turn).

Resolution:

Ensure that HR and legal teams are fully briefed on the new requirements and that they have robust processes in place to monitor and manage collective consultations.
Engage with trade unions and employee representatives early in the process to foster a collaborative approach and minimise conflict.
Plan redundancies and changes to terms projects carefully, to ensure compliance with the new laws while minimising disruption to the business.

6. Trade union empowerment

The government intends to enhance trade union rights by repealing restrictive legislation, simplifying the process for union recognition, and granting unions access to workplaces for recruitment and organising. Union representatives will also see strengthened protections with the changes.

Potential issues:

An increase in union activity: Unionisation efforts may increase within the business. This is likely to be a notable risk in sectors where wages are lower, and turnover is higher.
The potential for more frequent industrial action: Stronger, empowered unions could lead to an increase in strikes and other forms of industrial action. This could prove to disrupt business operations significantly.

Resolution:

Foster positive relationships with trade unions by engaging with them proactively and addressing worker concerns before they escalate.
Develop contingency plans to mitigate the impact of potential industrial action on business operations.
Ensure compliance with all legal requirements related to trade union recognition and collective bargaining.

Conclusion

A vast number of proposed changes are on the horizon. The above are just a few of the key changes that have been outlined as priorities by the government.

Whilst these changes may present several challenges for organisations, HR and legal teams, and general counsel, they also offer businesses an opportunity. It’s one where they can improve their employment practices, leading to greater satisfaction and higher engagement from their workforce – both offer unparalleled advantages to any organisation.

Whilst these changes are still expected to proceed, the details are yet to be announced and the timescales for any changes remain unclear. Therefore, it’s essential to keep the situation under review, remain informed and anticipate the potential impact.

Regardless of whether employment law falls within your immediate purview or not, the proposed changes could have a significant impact on many aspects of your role. It’s important to ensure that you engage with your internal teams early and consider seeking external advice if necessary to prepare your organisation for the future.

If you have any questions about the points raised in this blog, please get in touch with our Employment team.

Disclaimer: Anything posted in this blog is for general information only and is not intended to provide legal advice on any general or specific matter.

Contract Variation - avoid becoming a cropper to the heatwave when your suppliers are looking to change the deal

Clarion — 31/08/2018

The global effects of the continuous high temperatures of late have been well reported in the media and at Clarion we’ve been seeing how some of our own food manufacturing clients have been suffering as a result of the heat.

The issues which a number of food manufacturers have recently been experiencing, due to the heatwave, revolve around contractual relationships with suppliers. Across our clients’ requests for advice, there have been several prevailing themes: crop failure due to sustained hot weather; inability of suppliers to deliver products either in the agreed quantities or at agreed prices; and pressure exerted by suppliers to agree contractual variations on significantly less favourable terms in order to guarantee continuity of supply.

If you are a food manufacturer and find yourself in similar circumstances, this blog explains the legalese which will invariably be quoted by suppliers. It will also tell you, how, if it all, that terminology applies to you as well as some of the legal concepts and issues that you need to consider if you end up in a position where you need to bring a claim against one of your suppliers.

Please see our contract variation blog for more details.

The Autumn Budget 2024 – What do businesses and individuals need to think about?

Clarion — 25/11/2024

Change is on the horizon. 2024 has already brought about a considerable number of considerations for both businesses and individuals, and the Autumn Budget has certainly extended that list. But now that we’ve all had the opportunity to interpret the details of the Budget so far, we want to help you understand how it impacts your situation.

With a number of changes introduced, representing both new challenges and new opportunities for businesses and individuals alike, it’s crucial to gain a deeper understanding in order to more effectively plan your next steps.

If you need support or advice with any of the points outlined below, we’re here to help. Our teams work collaboratively to find the best outcomes for the businesses and individuals we work with – they always have. And it’s that collaborative approach that brings together real expertise that we use to deliver strategies tailored to your specific needs. By combining deep insights into business operations with a robust understanding of personal wealth planning, we can support and prepare you to navigate the complexities of the Budget with confidence.

Business taxation changes

1. The National Living Wage (NLW) to increase from 6 April 2025

For those aged over 21, a 6.7% increase representing a new hourly rate of £12.21 will be introduced. Similarly, those aged 18-20 will receive a 16.3% increase rising to an hourly rate of £10, and those aged under 18, and Apprentices, will see an 18% increase with a new hourly rate of £7.55.

2. National Insurance Contributions (NICs) to increase from 6 April 2025

The Employer NIC rate will see a rise from 13.8%, to 15%, whilst simultaneously the secondary threshold (the level at which employers start paying NICs for each employee) will reduce from £9,100, to £5,000.

3. Other important business tax changes

Capital Gains Tax (CGT) will see new unified rates at 18% (basic) and 24% (higher) for both residential and non-residential property, as of 30 October 2024.

Business Asset Disposal Relief will be retained at the £1million limit and the 10% CGT rate will also be retained where available, but rates will rise to 14% from 6 April 2025, and then 18% from 6 April 2026.

A higher rate of Stamp Duty Land Tax is to be paid on additional dwellings, with an increase from 3% to 5% as of 31 October 2024.

The overall impact: Businesses will experience significant financial pressures with the changes outlined in the Budget, particularly those that operate in sectors with high employment costs and asset-intensive operations, such as retail, hospitality, and manufacturing. These challenges represent a need for careful navigation, highlighting the importance of a proactive approach to cost management, assessing pricing strategies, workforce structures, and the consideration of long-term investments in workforce efficiency and technology. One of the most important elements that businesses need to take away from this is the crucial need for early planning - it’s essential in order to mitigate these financial impacts and to maintain resilience in a changing economic landscape.

Personal taxation changes

1. Inheritance tax changes

The individual inheritance tax (IHT) allowances (£325,000 plus a £175,000 top-up) will remain frozen until 2030, extending the previous freeze end date from 2028. Plus, from 6 April 2025, the interest on unpaid IHT will rise from 7.5%, to 9%.

2. Pension tax changes

A huge change to pension taxation is incoming, with inherited pensions being subject to IHT as of 6 April 2027. Almost all pension death benefits that pass on death will be included within the value of a person’s estate for Inheritance tax purposes. The pension scheme administrators will need to work alongside the estate personal representatives to calculate the IHT due and pay from the pension pot.

3. Business and agricultural relief from 6 April 2026

From 6 April 2026, qualifying businesses and farmers will only get 100% relief against IHT on the first £1million of business or agricultural assets. Any assets that are valued at more than £1million will be due at 50% of the standard rate, i.e. a 20% rate of IHT. This new £1million allowance will not transferable between spouses.

This £1million allowance will cover the estate passing on death, gifts to children where the donor fails to survive 7 years, and lifetime gifts into trust. The government intends to publish a technical consultation in early 2025 on the detailed application of the policy to charges on property within trust.

It’s also important to note that shares on the AIM market which previously could attract 100% relief from IHT, will now only ever attract 50% relief from IHT.

The overall impact: A increased tax burden on individuals and families will create challenges for many, particularly those with larger estates or family-owned businesses. This highlights the need for proactive estate planning to help those affected to manage higher costs, plan succession, minimise tax liabilities, and secure wealth for future generations. It’s important to review Wills, explore lifetime gifting, and consider transferring shares and business assets insurance options as strategies to safeguard your assets.

How can we support you?

The raft of changes introduced in the Budget are likely to affect a significant number of businesses and individuals, giving rise to a number of challenges across the board, as well as those that will occur on a case-by-case basis. In order to mitigate the risks that you or your business may be facing, it’s important to start having conversations early so that you can prepare and plan most effectively.

We can help you to assess how the changes affect your business and personal circumstances, whilst supporting you in the process of developing strategies to manage increased costs and tax implications. We can also help you to ensure that your succession and estate plans remain aligned with your goals.

Disclaimer: Anything posted in this blog is for general information only and is not intended to provide legal advice on any general or specific matter.

Social Media Policy - Managing social media in the workplace

Clarion — 15/11/2017

Victoria Clark, associate in Clarions employment practice, gives advice how businesses can ensure that social media is not misused by employees.

1. Introduce a Social Media Policy

The centrepiece of your social media management toolkit should be a comprehensive policy setting out clear rules and expectations around the use of social media by employees.

Ensure that employees acknowledge receipt of the social media policy and confirm that they have read and understood it, in writing.

2. Conduct Social Media Training

Train your team on the content of your social media policy, emphasising what constitutes acceptable and unacceptable use of social media. Regular refresher training will also be beneficial.

Ensuring that employees have received up to date training will not only help to prevent issues from arising, but you will be better placed to take disciplinary action if something does go wrong.

3. Introduce Equality Training

As social media is difficult to control, the risk of employees uploading or sharing discriminatory content is high.

You can be vicariously liable for acts of discrimination carried out by your employees online where the act was in the course of employment. This has a wide meaning and may include any social media post where there is any visible association with the employer.

Your only defence would be to establish that you took all reasonable steps to prevent the discrimination. Therefore, regular training on discrimination and equality will significantly reduce the chance of you being liable for employees online behaviour.

4. Get Management Support

Managers need to understand, support and enforce your social media policy. Train your managers and seek regular updates.

5. Monitor Social Media Use

Monitoring online activity is useful, but notoriously difficult. You can only monitor your employees where this is justified and proportionate, otherwise it will be unlawful.

Therefore, you must set out a clear written monitoring policy and ensure that employees have explicitly consented to being monitored.

Avoid creating bogus social media accounts to monitor employees activities. The Information Commissioners Office has issued a specific warning about this, as it may infringe employees right to privacy.

6. Take Disciplinary Action

Your social media policy will become meaningless and lose credibility if you do not consistently enforce it when you discover that your employees have behaved inappropriately online.

7. Define Company Property

During their employment, employees can develop a network of business contacts via social media. When an employee leaves, there is often confusion around the ownership of those contacts and this can leave the employer exposed to the risk of their contacts being solicited away.

To avoid any such risk, ensure that you identify social media contacts made during the course of employment as company property. The employment contract should be carefully drafted to ensure that the definition is enforceable.

8. Update Contracts of Employment

It is worth reviewing the termination provisions in your template contract of employment to include provisions which require social media contacts made during the course of an employees employment to be deleted or handed over on termination.

9. Use Social Media in Recruitment

Social media can be helpful when youre recruiting as you can get a feel for the individuals personality, but you should inform the candidate that youre doing this and take care not to discriminate based on their social media profile. You can only reject candidates for objective reasons such as insufficient experience.

10. Avoid Online References

Dont be tempted to use social media to track down former employers and colleagues of a job applicant this could be an invasion of privacy. There is ongoing litigation in America around this which is likely to be persuasive on the UK courts.

If someone asks you to give a reference about a former employee online, dont. You could find yourself liable for negligent misstatement or misrepresentation. Silence is golden.

Data Subject Access Requests – an HR perspective

Clarion — 20/11/2023

Let me set the scene: I arrive into the office one day to find, not unusually, an email from a client seeking advice on a data subject access request they have received from a former employee. I settle down to review the pages of documentation sent by the client (my remit was to check whether the data is disclosable and whether it needs to be redacted).

So far, so good. Until I stumble across indecent images of the former employee watching inappropriate adult rated content. Not only was he using company time to watch the videos, he chose to watch them on company devices and film himself watching them…

Most DSARs are no way near as salacious, but, traumatising images aside, there are a few key take-away points from that DSAR and the numerous others that we help with on a regular basis.

Key take-away points

Employee awareness – make sure your employees understand that anything they document may be captured by a data subject access request. A policy of “don’t write down something that you wouldn’t want to be read” may be helpful to adopt. This applies to documents, emails, text messages, WhatsApp messages, instant messaging services and so on;
What constitutes personal data – the person who deals with DSARs at your organisation should have a solid understanding of what constitutes personal data. It doesn’t simply cover contact details and information on a personnel file, but also opinions about and given by the individual and other information from which you learn something about the individual;
Redaction is key – make sure that information that relates to third party individuals is redacted unless you have consent to disclose it. You may also wish to redact anything that doesn’t constitute personal data (for example, wider business information);
Each instance of personal data only needs to be provided once – a misunderstanding we frequently stumble across is the idea that every email that references the data subject needs to be provided in the DSAR response. That isn’t the case. Each instance of personal data (for example, the data subject’s name or email address) only needs to be provided once. In many cases, the content of most work-related emails will fall outside of the scope of a DSAR unless they happen to contain additional personal data within them, such as an opinion about the data subject or a reference to sickness absence, their spouse or family;
Consider whether legal privilege applies – in broad terms, information does not need to be disclosed: (i) if it consists of confidential communications between you and your legal adviser or a third party if litigation with the data subject is contemplated or in progress; or (ii) if it consists of confidential communications between you and your legal adviser for the purposes of seeking or obtaining legal advice;
Consider other exemptions – there are a number of exemptions that may apply but the two our clients most frequently reply upon when dealing with DSARs received from employees cover: (i) management information which is exempt if disclosing the information would be likely to prejudice the conduct of the business; and (ii) records of your intentions in negotiations with the data subject which are exempt if disclosure of the information is likely to prejudice the negotiations;
Timescales – all DSARs must be responded to (unless they are manifestly unfounded or excessive) within one calendar month of receipt of the request. The one month timescale may be increased by a further two months if you can argue that the request is complex. Note that a large volume of data will not on its own constitute a complex request;
And finally – if you haven’t already, consider blocking access to any websites you may not want your employees to access on company time…

Breaches

Although not strictly linked to DSARs, we feel it’s always worth flagging the importance of dealing quickly with any breach or potential breach. Think phishing attacks, accidental disclosure of or theft of data, for example. The first few hours in dealing with such a scenario can be critical in terms of damage limitation and any potential reaction of the Information Commissioner’s Office (ICO). If you are concerned a breach has occurred and you require advice, please don’t hesitate to contact Flo or one of our other specialist data protection lawyers so that we can help you minimise the consequences of the breach, determine whether ICO or individual notification is required and help you work out the necessary steps to reduce the changes of it happening again.

Ask Flo Anything

If you would like more information or advice about DSARs or any other data protection related concern, please feel free to contact Flo at florence.maxwell@clarionsolicitors.com.

Flo will also be holding an online “Ask Me anything” webinar in January focussing on data protection issues for HR teams including a closer look at DSARs, guidance around dealing with breaches and a discussion on documents and processes that are legal requirements and other “nice to haves” to help improve compliance and business practices. Invitations and registration information will be sent within the next few weeks.

Business resilience in manufacturing

Clarion — 08/12/2022

The UK manufacturing sector has perhaps never faced so many change dynamics - some positive but many negative. At a recent Made In Yorkshire round table event chaired by Steve Crow from Clarion, a discussion took place covering some of the issues impacting UK manufacturing and sharing best practice on ways to enhance business resilience in the face of change.

Component supply - many manufacturing businesses use components either in their products or in manufacturing processes. Pre-Covid, Brexit and Suez Canal blockage the supply chain for electronic components may have been 6 - 12 weeks, but recent experience has seen this extend to over 60 weeks in some instances. This challenge in getting products to market, has required some organisations to rethink and redesign their products. Clarion are working in partnership with the likes of Arrow, one of the world’s largest suppliers of components, to support manufacturers to identify alternative solutions.
Energy - it was recognised that energy is a particular issue for the whole sector, but accentuated in those organisations that are energy-intensive, such as polymer products and glass production. Energy costs are likely to continue to increase in the new year, and forward-thinking businesses are looking at strategies to reduce energy consumption to enhance their resilience, including the adoption of renewable technologies. ESG is an increasingly important issue for manufacturing businesses and this is often an important criteria in recruiting new talent into the business.
Skills - there is still a massive skills shortage across most sectors, including manufacturing, and this has placed constraints on delivering business growth for many organisations. Manufacturers are having to think creatively about talent management and talent pipeline. This has included building stronger relationships with schools, colleges and universities, as well as looking into previously untapped resource pools. For example, some organisations are successfully recruiting ex-offenders and ex-military personnel. Increasingly, manufacturers are accelerating the adoption of robotics and automation to deal with the shortage of resource.
Data - manufacturers are adopting new technologies to enhance business processes and efficiencies. This allows a better understanding of where incremental improvements can be made to enhance cost reduction or revenue enhancement.
Rising material costs – the cost of materials and availability is an issue for many manufacturers. In many instances the costs can be passed on to customers but not in always, which will have a major impact on profit for businesses.

In summary; whilst there many ‘moving parts’ for manufacturers to deal with at the moment, many are investing in new innovations to mitigate risks or to find competitive advantage.

Company Directors take action - Identity verification under ECCTA

Clarion — 16/06/2025

Highlights

The Economic Crime and Corporate Transparency Act 2023 is changing the role of Companies House and, more specifically, introducing new identity verification requirements for individuals involved with UK companies, mainly directors, people with significant control and those filing information.
The requirements are expected to become mandatory this autumn 2025 for new appointments and incorporations, and for existing roles there will begin a 12-month transition period linked to submission of a relevant entity’s next annual confirmation statement.
Those impacted can verify their identity in one of two ways: directly with Companies House, or through an Authorised Corporate Service Provider. The route chosen will determine which identity documents are required, and the process that needs to be followed.
Once the regime comes into force, acting as a director while unverified will be a criminal offence and may result in a fine. Companies will need to ensure that their directors do not act unless verified, or the company may also be committing an offence.
More than 7 million individuals are expected to become subject to the new identity verification rules later this year. If you or your business is caught by the new regime, early voluntary verification is strongly encouraged now, before the mandatory regime comes into effect.

For more information, please see our guidance note.

To find out more about what the ECCTA reforms mean for you, and to discuss what you need to do next in more detail, please don’t hesitate to contact us.

What you need to know about the ECCTA 2023

The Economic Crime and Corporate Transparency Act 2023 (“ECCTA”) introduced a significant new requirement: identity verification for individuals involved in the management and control of UK corporate entities. These reforms are designed to enhance transparency and prevent the misuse of corporate structures. While the obligations are expected to become mandatory in stages from autumn 2025, individuals and businesses are strongly encouraged to prepare now.

Who is required to verify their identity?

Identity verification will be required for all company directors, LLP members, people with significant control (“PSCs”), relevant officers of relevant legal entities, and those who submit filings to Companies House. The rules will also apply to individuals acting as Authorised Corporate Service Providers (“ACSPs”), a new Companies House authorised agent created by ECCTA. ACSPs, who will be intermediaries such as law firms and accountants, once registered as such will be able to verify identities and submit information to Companies House on behalf of others.

Why do you need to verify your identity?

The process for verifying identity is expected to be straightforward and, for most people, a one-time requirement. Once verified, individuals will receive an 11-character unique identifier code that will be used to link them to their appointments across relevant different entities. This code will not be publicly disclosed but will be necessary for interactions with Companies House going forward, such as director appointments, confirmation statement filings, and changes in PSC status.

Although identity verification will not become mandatory until autumn 2025, a voluntary system is now live. Early action is advisable to avoid delays once the compulsory regime comes into force. From that point, individuals who have not been verified should not act as a director, and doing so may constitute a criminal offence. Companies that allow unverified directors to act could also face enforcement action.

How can you complete the process?

There are two ways to complete identity verification. The first is directly through Companies House using the GOV.UK One Login service, which is free and accessible via a mobile app, a web browser or, in person at a Post Office. The mobile app route is typically the most efficient, particularly for those with a UK biometric passport or photo driving licence. Those using the web browser route will need to answer personal security questions linked to credit records, and there is only one chance to pass this check. Alternatively, verification can be carried out through an ACSP. This may be particularly helpful for non-UK residents or those who do not hold suitable identity documents for the direct process. ACSPs will charge a fee for this service and not all ACSPs will offer identity verification, so it is worth confirming in advance.

We recommend that businesses review which individuals in their organisation are likely to be affected, ensure they have the right identity documents in place, and encourage them to complete the verification process sooner rather than later. Those verifying directly with Companies House should make a note or screenshot of their unique identifier code as soon as it is issued, as there may be a delay before it appears formally on their Companies House account.

More information and expert advice

For more information, please see our guidance note. If you have any questions about identity verification or any other aspect of the ECCTA reforms, please don’t hesitate to get in touch with our expert advisers.

Disclaimer: Anything posted in this blog is for general information only and is not intended to provide legal advice on any general or specific matter.

Clarion’s Loneliness Summit - with guest speaker Dr. Hilary Jones

Clarion — 23/08/2019

With growing awareness of the problem of loneliness in later life and the harmful impact it can have, Clarion is bringing together a number of specialists including well-known TV presenter and medical broadcaster, Dr Hilary Jones, to discuss the issue.

The law firm’s Loneliness Summit on 10^th September will ask what private and public sector organisations are doing to beat the loneliness epidemic and help baby boomers to boom and future generations to thrive. This event is suitable for any manufacturers that supply to the healthcare sector.

Dr Jones is a familiar and trusted face to millions, dispensing sound medical advice on screen and radio, and in national newspapers and books. He is also medical adviser to Bradford-based Acorn Stairlifts, one of the world’s leading stairlift providers.

Other speakers include a representative of Leeds University who will discuss recent research topic - an exploratory study investigating older people’s social relationships within residential care settings.

A speaker from Turnstall Healthcare, a market leading provider of connected care and health solutions, will be explaining how it is using pioneering technology to support those with health and care needs, enabling them to live independently as long as possible. Finally, spokespeople from Friends Against Scams, will advise about how to best prevent and protect vulnerable people from scams.

Caroline Broad, business development manager at Clarion, said: “With more than two million people in the UK over the age of 75 now living alone and life expectancy continuing to increase, loneliness is a growing problem and one that can have a significant impact on health, well-being and the nation’s public services.

“The aim of the summit is to provide an insight into how loneliness affects the UK, taking a look not only at the trends and challenges we are facing, but also hearing from a range of experts about the opportunities and the latest developments in alleviating some of the problems.”

The seminar will be followed by a short panel discussion with Leeds Community Foundation, Shared Lives Plus and Sporting Memories Foundation outlining how they connect communities and try to prevent loneliness and isolation.

The event will take place on Tuesday 10^th September from 12.30-3.30pm at Clarion’s Elizabeth House offices on Queen Street, Leeds. To find out more, or to reserve your place, contact the Marketing Team on (0113) 336 3348 or marketing@clarionsolicitors.com.

Energy in manufacturing – your opportunity to help shape the energy conversation for UK manufacturers

Clarion — 14/10/2025

Over the past few weeks in our series of articles on energy in manufacturing, we’ve explored some of the core considerations and issues for energy procurement and projects for UK manufacturers.

Now we want to hear from you.

We understand that every business will have its own challenges, goals, and priorities. To help develop a solid foundation to inform better energy procurement strategies across the sector, we want to know what matters most to you and your business. What energy-related challenges are standing in your way or holding you back? Where are the opportunities for growth? What do your future plans involve with regards to energy procurement? Your answers to these questions can help to shape the next stage of support for the manufacturing sector.

A quick recap of the series

We kicked off the energy in manufacturing article series talking about the pressures facing the sector, including evolving regulatory obligations and the adaptability required to combat rising costs and reputational impacts. The piece highlighted some of the key challenges for manufacturers when it comes to energy, as well as why it can no longer be thought of as just another utility.

Following on from this, we discussed the power and potential of smart energy. Optimisation and automation is a powerful tool for any business, but for manufacturers especially. Understanding smart energy as more than just a concept can help put more effective and efficient energy strategies in place to begin addressing some of the issues discussed in the first article.

We also talked about taking a more purposeful approach to energy procurement. Manufacturers have a number of options when it comes to procuring energy, and the best option for any business is often related to their particular goals and requirements. Understanding your options of different contracting structures and commercial models is one of the best ways to help regain control.

Finally, we provided an overview of Corporate Power Purchase Agreements (CPPAs). These agreements are forming a vital part of energy strategies for a growing number of manufacturers, but much like the other forms of procurement highlighted in the third article, a firm understanding of how they work, as well as their benefits and potential hurdles, is essential.

Why your feedback counts

Aside from providing a structured way for you to identify your own approach to your business’ energy procurement strategy, completing our short survey enables you to play an active role in shaping the future of support and guidance for energy procurement in manufacturing. The feedback you provide can help formulate more beneficial, practical resources for manufacturers, as well as shaping the perspectives and approach to potential future roundtables and tools. We’ll also share anonymised sector trends back with all participants, so you can actively observe what those within your sector are prioritising to obtain a multi-faceted perspective on future energy strategies.

If you’d like your opinion to be heard and to play a key role in developing future support and insights, both for your business and the wider sector, please click here to take our 2-minute energy survey.

Understanding the SkyKick decision: Bad faith – what it means for trade mark law

Clarion — 06/12/2024

The UK Supreme Court recently delivered its long-awaited judgment in SkyKick UK Ltd and another (Appellants) v Sky Ltd and others (Respondents) [2024] UKSC 36. The landmark decision provides guidance on the scope and validity of UK trade marks, and, in particular, the interpretation of bad faith in trade mark applications and partial invalidity.

What was the case about and what was the decision?

The case involved a dispute between Sky, the well-known media and telecommunications giant, and SkyKick, a tech company offering cloud management software. Sky alleged that SkyKick infringed its trade marks, which covered an array of goods and services. SkyKick challenged the validity of Sky’s marks, arguing that they were overly broad, lacked "clarity and precision", and were applied to goods and services for which Sky had no genuine intention to use them for.

The Supreme Court looked whether a trade mark could be invalidated (in whole or in part) on grounds that the application was made in bad faith because the applicant did not intend to use the mark for the goods or services for which it sought protection, and whether the use of broad or general terminology could lead to an inference of bad faith. The Supreme Court held that, amongst other things, such an inference was circumstantial, but that the use of broad or general terms can lead to an inference of bad faith.

What impact does this decision have?

The Supreme Court's decision has clarified the extent to which trade marks can be protected. One of the key takeaways is that goods and services descriptions must be specific and clearly defined. The Court emphasised that overly broad trade mark specifications, which cover a range of goods and services, without a genuine intention to use them, run the risk of being deemed invalid. This means that applicants must be able to show feasible reasons for wanting to use the trade mark in connection with the goods and services listed in their application. Failure to do so could result in the trade mark being invalidated if challenged. This ruling aims to prevent companies from monopolising trade marks that cover overly broad terms and ensuring that trade marks serve their primary purpose of distinguishing goods and services in the market.

How does this decision compare to previous rulings?

UK trade mark law and practice, has long held that trade marks should only cover goods and services for which there is a genuine intention to use the mark. On filing, an applicant is required to confirm that it has a genuine intention to use the mark for the goods and/or services applied for. This decision reaffirms this principle and takes a firmer stance against overly broad registrations. The Court recognised that allowing marks to cover goods or services for which there is no intention to use the mark could create an unfair monopoly. Importantly, the Supreme Court allowed for partial invalidation of Sky’s marks.

What should I do following the decision?

For businesses and brand owners, this decision is a reminder to adopt a focused approach to trade mark applications. Here are some practical tips:

Be specific: When filing new trade mark applications, ensure your descriptions of goods and services are specific and reflective of genuine business plans. Avoid overly broad or generic terms and include sub-categories of goods and services instead. An example would be to avoid the broad term ‘computer software’ but instead specify the exact type of software on which the mark will be used
Demonstrate genuine intent: Retain any evidence of your genuine intention to use the trade mark for the specified goods and services. This could include business plans, marketing strategies, or other documentation that demonstrates your intent.
Review existing trade marks: Review your trade mark portfolio to ensure that your registrations align with your actual or planned use of your marks. If some registrations include overly broad terms, consider amending or limiting them to avoid disputes.
Seek legal advice: Given the complexities of trade mark law, it is advisable to seek legal advice when preparing and submitting trade mark applications. A legal professional can help ensure that your application meets the necessary requirements and can provide guidance on how to demonstrate genuine intent.

By staying proactive, businesses can navigate this evolving landscape with confidence.

Get in touch with our Intellectual Property team if you’d like to discuss further.

Disclaimer: Anything posted in this blog is for general information only and is not intended to provide legal advice on any general or specific matter.

Building Safety Act: Duties of a Duty Holder – Client, Principal Designer or Principal Contractor

Clarion — 01/11/2023

As a result of the Building Safety Act 2022 (BSA) and more specifically Part 2 of The Building Regulations etc. (Amendment) (England) Regulations 2023 (BRAE Regulations), existing duties imposed on parties in construction projects by The Construction (Design and Management) Regulations 2015 (CDM Regulations) are now expanded with new responsibilities.

Where an individual or organisation holds the title ‘client’, ‘principal designer’ or ‘principal contractor’ under the Construction (Design and Management) Regulations 2015 (CDM 201), they will also be known as a ‘duty holder’ under the BRAE Regulations and must comply with the new obligations where they are engaged in construction projects. It is important to note that the new responsibilities of the duty holder are not limited to just higher-risk building projects and will apply to all construction projects.

The new duty holder regime aims to ultimately enhance on-site health and safety and increase the responsibility given to the relevant persons involved in the building project.

General Duties of the Duty Holder

Chapter 4 of the BRAE Regulations highlights the general duties imposed on all duty holders.

Since the introduction of the regulations, all duty holders have the obligation to:

ensure that any work, that is carried out by themselves or by any workers under their control, is planned, managed and monitored in accordance with the relevant requirements; and
ensure that they cooperate with the client, designers and contractors (including the principal designer and principal contractor) to the extent necessary to ensure that the building work in which they are carrying out is compliant with the relevant requirements.

Duty Holders – Role of the Client

The client is identified as any person for whom the project is carried out. Often, they will be the developer of the building. Where there is more than one client, the parties may agree in writing which party is to be responsible for the role of ‘sole client’, for these duties.

The client will have several responsibilities mandated by the BSA, in addition to their current obligations. Generally, it will be the client’s role to establish the direction of the project, ensuring that an environment is created that adheres to the Building Regulations.

Their duties will include:

Making suitable arrangements for the planning, management and monitoring of a project.
Ensure that the planning, management and monitoring of the project is compliant with the relevant requirements of the building regulations and that they are maintained throughout the project.
Ensuring that the individuals/organisations who are employed are competent to carry out the work which they have been contracted to undertake in accordance with the new competency requirements imposed by the British Standards Institution (BSI). For more information on duty holder competency, please see our blog 'Building Safety Act: Duty Holder Competency'.
Providing building information as soon as is practicable to every designer and contractor on the project.
Communicating with any other person working on or in relation to a project to the extent necessary to enable any person with a duty or function under these Regulations to fulfil that duty or function.

Duty Holders – Role of the Principal Designer

The Principal Designer will have several duties which they must carry out to ensure compliance with the Building Regulations.

The responsibilities of the Principal Designer include:

Planning, managing and monitoring the design work during the design phase.
Coordinating matters relating to the design work and ensuring all designers coordinate with the client, the designers, the principal contractor and each other.
Liaising with the principal contractor and sharing any information in relation to the above to ensure the maintenance of the ‘golden thread’.
When the principal designer’s appointment ends, no later than 28 days after the end of the appointment, they must give the client a document explaining the arrangements which they have put in place to fulfil the duties and any replacement principal designer must review the arrangements which the previous principal designer put in place for fulfilling the duties to ensure that the building work is compliant with the relevant requirements.

Duty Holders – Role of the Principal Contractor

The principal contractor has several responsibilities during the construction of a building, with even stricter duties for higher-risk building projects.

The responsibilities of the Principal Contractor include:

Planning, managing and monitoring the building work during the construction phase.
Coordinating matters relating to the design work and ensuring all designers coordinate with the client, the designers, the principal contractor and each other.
Liaising with the principal designer and sharing any information in relation to the above to ensure the maintenance of the ‘golden thread’.
When the principal contractor’s appointment ends, no later than 28 days after the end of the appointment, they must give the client a document explaining the arrangements which they have put in place to fulfil the duties and any replacement principal contractor must review the arrangements the previous principal contractor put in place for fulfilling the duties to ensure that the building work complies with the relevant requirements.

Existing Duties

It is important to note that duty holders will retain their existing duties provided to them under the Construction (Design and Management) Regulations 2015.

In addition to the new responsibilities and specific obligations, duty holders will retain the responsibility for:

Co-operating with other duty holders.
Communicating and sharing information.
Co-ordinating and putting systems in place to plan and manage work.

Breach of Duty Holder Responsibilities

Failure to comply with the new duties will not only result in repercussions for the progression of the building project but also potential sanctions on individuals.

Some examples of repercussions include:

Failure to obtain a completion certificate and therefore delays in the occupation of a building.
Rejection of an application for building control approval.
Delays and additional costs for re-applications.

Regarding sanctioning, the Building Safety Regulator (BSR) will have the authority to enforce sanctions where a duty holder is in breach of their duties.

As a result, individuals may face up to an unlimited fine and/or a prison sentence of up to two years. Therefore, it is fundamental that duty holders are aware of the importance of complying with their duties, and the severity of non-compliance.

For more information on the enforcement powers of the BSR, read our blog ‘New Enforcement Powers for the Building Safety Regulator’ here.

Disclaimer: Anything posted in this blog is for general information only and is not intended to provide legal advice on any general or specific matter.

Seminar: Energy Resilience for Manufacturers

Clarion — 26/05/2026

Manufacturers across the UK are facing growing pressure to balance rising energy costs, operational resilience, and sustainability ambitions, all while navigating continued economic uncertainty and tightening commercial margins.

In partnership with Made in Yorkshire, this executive-level breakfast event will bring together senior manufacturing leaders for a focused discussion on the future of energy, investment, and operational strategy within the sector.

Designed specifically for MDs, FDs and CEOs, the session will explore how businesses can move beyond short-term cost management and begin building longer-term resilience through smarter energy strategies, digitalisation, and more informed decision-making.

The event will feature keynote insights from:

Mike Wilkinson, Major Pursuits Director at Schneider Electric
Mike will be sharing Schneider’s perspective on the changing energy landscape and how manufacturers can use data, digitalisation and AI to improve efficiency, reduce waste, and build more resilient operations.

Jeavon Lolay, Head of Economics & Market Insight at, Lloyds Bank Commercial Banking
Jeavon Lolay is Head of Market Insights at Lloyds Bank, leading analysis of the UK economy and global market developments. A highly experienced economist and regular speaker, he provides expert insight on financial markets, interest rates and the economic outlook to audiences across the UK and internationally. Jeavon will be providing economic insight into the wider market outlook and the key trends shaping UK industry.

Agenda

Agenda:

08:30 – 09:00: Arrival, Breakfast & Networking

09:00 – 09:10: Welcome from Made in Yorkshire & Clarion

09:10 – 09:30: Keynote – Schneider Electric

09:30 – 09:50: Keynote – Lloyds Bank Commercial Banking

09:50 – 10:30: Panel Discussion & Audience Q&A

Registration

You can register by clicking here.

How can a commercial contract be terminated?

Clarion — 21/12/2021

A commercial contract can be terminated automatically, so you could be a party to a fixed term contract, and it could automatically come to an end after the fixed period has expired. Alternatively, you may need to take a positive step to terminate. A commercial contract can be terminated in several different ways. Most commonly, a party may wish to terminate a contract for unsatisfactory performance or because the contract is no longer practical for one party to continue, but how they go about ensuring they can terminate is, in most cases, a matter which is dealt with by ensuring the contract is drafted properly in the first place.

Please read our blog on 'How can a commercial contract be terminated?' for further information.

Energy in manufacturing – navigating an ever-evolving landscape

Clarion — 08/09/2025

Businesses in the manufacturing sector are no stranger to having to “do more with less”, and today, in the volatile realm of energy and costs management, that statement is a consistent reality for countless organisations. The fact is, energy is no longer just an overhead. Because aside from being a utility cost, it holds a critical place as a strategic issue that directly impacts everything from productivity and compliance to remaining competitive and developing long-term resilience.

Between 2021 and 2023, the UK manufacturing sector saw average electricity prices rise by nearly 50% (ONS/BEIS), and whilst the wholesale costs have somewhat stabilised, the structural volatility that has occurred in recent years is showing no signs of making a departure. For businesses, that means it’s time to take a new approach to energy. An approach that acknowledges and adapts to the new energy landscape as an issue that affects every part of the business and operations.

Why energy matters for UK manufacturers in 2025 and beyond

Despite the slight stabilisation of prices, energy costs are unfortunately still volatile. We’ve witnessed a drop in wholesale prices since their peak in 2022, but they still remain above 2019 levels. This volatility has been, and continues to be, driven by global fuel markets (often affected by geopolitical shocks), constraints of the grid and spikes in demand, existing and evolving climate policy, and more This places significant strain on energy-intensive manufacturers who have a greater degree of exposure to the challenges of compliance and cost

There’s also growing pressure on regulatory and sustainability obligations. With the UK’s Net Zero Strategy and Industrial Decarbonisation Strategy, including the Clean Power 2030 action plan, highlighting the need for energy efficiency and carbon reduction, manufacturers are consistently required to revise their energy strategies on a frequent basis. These reviews include the need to consider Scope 1 (direct – emissions that result from activities owned or controlled by a company), Scope 2 (energy – indirect emissions generated from the consumption of purchased electricity, steam, heating, and cooling by a company, but produced by a third-party energy provider), and increasingly Scope 3 (supply chain – indirect greenhouse emissions as a result of activities from assets now owned or controlled by the reporting company, but are related to its operations) emissions, as well as meeting carbon reporting requirements for larger businesses under the current Streamlined Energy and Carbon Reporting (SECR) and future UK green taxonomy. It’s important to note that current SECR requirements relate to certain entities or a certain size – it does not apply to every entity, such as smaller manufacturers. More importantly, existing SECR requirements are currently under consultation and will likely be replaced with the UK Sustainability Reporting Standards (UK SRS) which will require a wider range of sustainability disclosures. We will provide further updates after the consultation process has closed in mid-September 2025.

Alongside these, new challenges are on the horizon, particular for exporters to the EU who will face potential carbon border taxes. Modelled on the EU Carbon Border Adjustment Mechanism (CBAM), the UK is looking to implement its own UK CBAM, due to come into force on January 1, 2027. Manufacturers should get themselves familiar with EU CBAM and UK CBAM, the relevant compliance, reporting obligations and timelines, as well as their position in the supply chain and interrogate their own supply chain downstream so as not to face competitive disadvantages in their respective markets.

Then there’s the element of customer and investor demands. An increase in demand for emissions data from customers and their own suppliers is one element that manufacturers need to actively manage. These demands also impact a business’ ability to access finance from banks and investors embedding ESG considerations into loan covenants and procurement requirements. And what about reputation? All businesses understand the importance of a positive reputation, and public perception is directly influenced by energy, sustainability and ESG matters. It is also a critical element of recruitment, where visible and effective energy and sustainability strategies are an important part of workforce expectations and retention of crucial talent within the workforce. Also, the additional regulation and requirements for reporting and compliant will have a significant overall impact on baseline costs.

A turning point for Yorkshire manufacturing

Long have the collective Yorkshire counties been at the heart of the UK’s manufacturing sector. Countless locations from North to South, East to West, act as industrial hubs that drive the sector and national GDP forwards. As an example, the Humber region is the UK’s largest industrial cluster, whilst South Yorkshire is synonymous with steel, automotive components and glass, and West Yorkshire is home to advanced textiles, engineering, food processing and more.

These regions, as well as others across the county, are actively placing decarbonisation and cleaner energy towards the very top of their priorities with projects and mechanisms such as carbon capture and storage (CCUS) and hydrogen (H2) infrastructure rising on the East Coast, greater collaboration between industry and academia through Net Zero North, and more policy engagement opportunities for manufacturers through the Yorkshire & Humber Climate Commission. Given the notable size of the county’s manufacturing clusters proportionately to the rest of the country, it becomes easy to see why that priority is an essential aspect of achieving the UK’s overall decarbonisation goals.

Now is the time to adapt, and we’re here to guide the way

Whilst progress is well underway for changing the way energy is addressed across the manufacturing sector, for businesses who may be reviewing their strategies either now or in the near future, the way forwards isn’t always as straightforward as it may seem.

That’s why we’re putting together a multi-part series to talk about the ways in which you can begin to navigate the different challenges and crossroads that stand in the way of your energy and decarbonisation strategies. Starting with this brief introductory piece discussing the importance of energy and energy strategy within the manufacturing sector, we’ll also be providing guidance on:

Smart energy and optimisation – When it comes to managing costs and reducing energy consumption, optimisation and technology plays a crucial role. Part 2 discusses how you can use and develop effective strategies using AI, IoT, and data analytics to work towards achieving your energy and sustainability goals.
Procurement strategies – Acquiring energy that works for you is a vital aspect of your energy strategy. So, in part 3, we will talk about different types of procurement strategies, navigating fixed, flexible and group purchasing, contract pitfalls, and provide you with a collection of legal tips for managing third-party intermediaries.
Power Purchase Agreements (PPAs) and Corporate Power Purchase Agreements (CPPAs) – For part 4, as a specific energy procurement route we’ll talk about how you can directly engage with renewable energy generators and suppliers with PPAs and CPPAs – a powerful tool both for locking in energy prices as well as enhancing your organisation’s ESG performance.
Have your say – We want to know what matters to you. For the fifth and final part in our Energy in Manufacturing series, we’ll finish with a short feedback piece where you‘ll have the opportunity to make your voice heard about your priorities, concerns, and strategies for your own energy, decarbonisation and sustainability journey.

Your energy decisions matter

Manufacturers have a large amount of influence across the UK’s energy and infrastructure landscape, and whilst legal and regulatory obligations play a crucial role in the nature of energy and sustainability strategies for businesses, organisations also have the capacity to shape commercial structures, be that to reduce risk and costs and/or to improve performance and efficiency.

With that in mind, over the coming weeks, our manufacturing and energy law specialists will share their insights so that you can make more strategic, smart choices and seize sustainability opportunities, both now, and for the long term.

To find out more about how your business can manage energy risk and opportunity, please don’t hesitate to get in touch with our manufacturing and energy, infrastructure and projects law experts.

CfD contracts: Legal requirements for AR6 successful applicants

Clarion — 24/09/2024

The Contracts for Difference (“CfD”) scheme is a financial support mechanism used by the government to accelerate GB renewable and low carbon electricity generation projects. Projects that meet the eligibility criteria can apply for a CfD and if successful, will enter into a private contract with the Low Carbon Contracts Company (“LCCC”).

Clarion’s Energy and Infrastructure team have previously advised on the generic CfD agreement and contract variants for CfD and the terms and conditions to go with the CfD agreements for various renewable technologies including onshore wind and solar pv.

The results for the sixth allocation round (AR6) of CfDs were released on 3 September 2024.

Successful applicants (known as the “Generator”) are required to fulfil certain conditions, including initial condition precedents (“ICPs”) when entering into the CfD contract with the LCCC. Some of the conditions can be handled by the Generator however others require input from external legal services providers.

One of these key legal documents which forms part of the ICPs is a legal opinion executed by a legal services provider which needs to be provided to the LCCC. The legal opinion will also need to be provided alongside a small suite of corporate documents including a director’s certificate and board minutes.

If you have been successful in an application for a CfD in AR6 and need assistance with complying with these conditions (incl. ICPs) to sign the CfD contract, require assistance generally with the generic CfD agreement or one of its variants or the general terms and conditions of the CfD, please get in touch with Christian Hellmund.

Disclaimer: Anything posted in this blog is for general information only and is not intended to provide legal advice on any general or specific matter.

Employment Law Bulletin - October 2023

Clarion — 31/10/2023

As autumn arrives and the nights draw in, we hope you’re all feeling spook-tacular and have carved out some time to read this month’s employment newsletter.

If an increase to the immigration fees (see last month’s edition) wasn’t scary enough for everyone, get ready for some hair-raising tales of employers who have fallen foul of employment law (and some terrible Halloween puns…).

No crystal ball needed

The Workers (Predictable Terms and Conditions) Act 2023 has received Royal Assent and is expected to come into force around September 2024. As the name suggests, it allows workers to request a more predictable working pattern, so tarot cards and tea leaves can be reserved for Halloween. The framework is somewhat similar to the Flexible Working process, with the key points to note as follows:

A request can be made by workers with unpredictable working patterns (e.g., those on a zero hours contract), those working on a fixed term contract and agency workers.

It is expected that those making a request will need 26 weeks’ service with the employer (this is still to be confirmed). There will not be a requirement for these 26 weeks to be continuous service.

Up to 2 requests can be made in a 12-month period.

When making the request the individual must explain the change they are requesting and the date they want it to take effect. The request could relate to hours of work, days of work or the period for which they are employed.

An employer must give reasonable consideration to the request and reply within one month with a decision.

There are specific grounds that can be given for refusing the request, such as the burden of additional costs or a detrimental impact on the ability to meet customer demands.

If a request is accepted the new terms must be offered within two weeks of granting the request. An employer will not be allowed to make detrimental changes to other elements of the contract in return for approving the request for predictability.

ACAS will be producing a draft Code of Practice in the near future, which will go out for consultation. ‘Creep’ an eye out in future newsletters for how to have your say. In the meantime, employers have the opportunity to begin updating policies and preparing training for line managers to reflect this new right.

Trick-or-less favourable treat…ment

Over recent years we have seen an increase in discrimination claims relating to the menopause. These claims have focused on disability, age or sex. In this case the employee was successful in establishing that her menopausal symptoms amounted to a disability, and that she had been treated less favourably as a result.

In Lynskey v Direct Line Insurance Services Ltd [2023], Mrs Lynskey was struggling to meet the required performance standards in her role as a tele-sales consultant. She had previously performed well in her role for a number of years, but the onset of the menopause in 2019 led to symptoms including low mood, anxiety, mood swings, poor memory, and poor concentration, which impacted upon her work.

She was moved to a different role where the targets and requirements were less demanding, but her performance was still not satisfactory. She was told that she would not receive a pay increase because her performance had been rated as ‘need for improvement’ and a performance management process then started, resulting in a disciplinary warning.

Mrs Lynskey’s claims of less favourable treatment due to something arising from her disability and failure to make reasonable adjustments were both successful, as was her claim for constructive unfair dismissal. Although Occupational Health input had been sought, this was not done until the employee was ultimately signed off sick with stress, and the Tribunal found that eight potential reasonable adjustments that had been suggested were not in place. She was awarded close to £65,000 by the Tribunal, including £23,000 for injury to feelings.

Actions:

For some, the menopause will not be a disability. However, for others the symptoms will be suitably serious, long-term and have an impact on day-to-day activities, meaning that the definition of a disability under the Equality Act 2010 is met.
Where this may be the case, medical advice should be sought early on in the process and adjustments considered.
Ensure that diversity, equity and inclusion training is up to date for line managers, and that it covers effective management of the menopause.
Does you business have a menopause policy in place? Speak to the team for support with a skeleton draft or implementing a suitable policy.

Ghoulish reference haunts employer

Two important points are made in the case of Haq v United Learning Trust and others [2023]. The employee was a teacher, and there were some concerns about his teaching following lesson observations. He was affronted by the criticisms and refused to attend meetings to discuss them. He went off sick with work related stress. When he returned to work, he refused to attend meetings with senior management, threatened to bring a claim of race discrimination, and went off sick again. Through the academic year there was a pattern of long periods of sickness absence.

He then had a fit note that ended on 11 July, and a meeting was scheduled with the school management on 6 July which he refused to attend. As a result, he was dismissed. He applied for a job at another school which he did not get, claiming that ‘negative comments’ made about him by the Head Teacher in a reference meant that he was not appointed.

He was successful with his claim of unfair dismissal – the employer should have waited to see if he did return on 12 July once his sick note had ended. The Employment Judge assessed that there was an 85% chance he would have been dismissed anyway. However, the Tribunal noted that they could not be 100% certain that he would not have made a sustained and successful return to work, although this almost certainly would have become clear had the employer continued with the process and waited a few days until the employee had spoken to his GP on 11 July.

Mr Haq was also successful in his claim of victimisation. He had been subjected to a detriment because the author of the reference had believed that he was going to bring a discrimination claim against them, and this was their main motivation for providing an unfavourable reference.

Actions:

If an employee is absent and covered by a fit note, it will almost always be best to wait and see if the employee returns when this expires before dismissing.
Concerns about an employee can be included in a reference, but they must be objective and factually accurate. Beware in particular if considering raising issues that have not been discussed with the employee.
Avoid a ‘howler’ and talk to us before either dismissing when there is a live fit note or submitting an unfavourable reference.

The eerie case of the vanishing redundancy

The case of Love v M B Farm Produce Ltd [2023] emphasises the importance of continuing to explore alternatives to redundancy. Although an employee may lose their right to a statutory redundancy payment, a fair and reasonable process must still be followed to avoid a finding of unfair dismissal.

The employee worked in a farm shop, which needed to close for financial reasons (whether or not it sold pumpkins is unconfirmed). She was offered an alternative role in another shop run by the farm. However, she was a nervous driver and was not familiar with the journey to the other shop and said she did not want to take the role. She was then told that she would not receive a redundancy payment because her employer considered that this was suitable alternative employment. As a result, she showed some interest in moving to the new shop on a trial basis to begin with, but the employer went on to find someone else to do the role and confirmed her dismissal.

Mrs Love was not successful in her claim for a redundancy payment. Entitlement to a statutory redundancy payment is lost if a suitable alternative role is identified and unreasonably refused.

However, she was successful in claiming unfair dismissal. Although her right to a redundancy payment may have disappeared when the suitable alternative role was first declined, the duty to explore alternatives to redundancy as part of a fair and reasonable process continued, and the employer had not found someone else to do the role until after Ms Love expressed her wish to reconsider. Ultimately, the employer should have allowed her a trial period in the role, and not rushed to dismiss her when she showed tentative interest in the alternative job.

Actions:

In an individual consultation you must make the employee aware of any suitable alternative employment.
“Suitable” alternative employment has a specific meaning in employment law, and it will depend upon the circumstances whether a role is a suitable alternative or not.
Even if a suitable alternative is rejected, the duty to seek alternatives to redundancy continues.
The law around trial periods and suitable alternative employment can be bloodcurdlingly complex, so speak with the Clarion team before deciding how to proceed.

This month we have been…

…getting out there!

Our Executive Brunch took place at Fearns, Leeds Dock on 21 September 2023. A select group of business leaders and people managers from across the region joined us to talk about attracting, incentivising, and retaining quality candidates in an evolving economic climate, whilst juggling changing business needs and workforce priorities. The modern and relaxed backdrop (not to mention an excellent selection of mid-morning drinks and delicacies) gave the opportunity for like-minded individuals to meet, swap ideas and help kickstart the discussion around what can be a challenging topic for many employers. We heard from our Business Immigration specialist, Suzanne Treen, on some of the challenges surrounding recruitment and the use of migration and obtaining a sponsor licence to fill skill and labour gaps. Iain Anstess, Partner at Q5, also joined us to give some insight into addressing the evolving work landscape while seeking to build a healthy working culture. Finally, our Corporate expert, Sarah Harrison provided some food for thought on how to put in place staff incentive schemes to retain top talent. The team has a wealth of expertise across the employment relationship from start to finish, whether it’s recruitment, attracting talent from overseas, contracts, policies, performance and absence management, redundancies, exits, dismissals, or anything else. We also work closely with our corporate team to support on mergers and acquisitions. We host a number of events for HR professionals, business owners, people managers and leaders of all levels throughout the year, and hope you can join us at the next one.

In the last couple of weeks, we hosted two webinars: one on handling disciplinaries effectively for our Rising Stars programme and the second our annual employment law update. If anyone missed the webinars and would like the recordings, please get in touch. We have listened to your feedback about the topics you’d like to hear about in the future and we will be in touch soon to let you know about our next in person events and webinars.

Exploding the IP myths: If there’s no company registered at Companies House with the name we want to use, is it ok to use it?

Clarion — 05/11/2024

This question is relevant to the launch of a new business, product or service, all of which may have a new name and it’s vitally important, before you commit to a new name, to ensure that it is free to use.

A search at Companies House to see if there are any companies registered with the name is only a very small part of this. Having a registered company name does not give you a right to trade under that name, nor a right to obtain trade mark protection for it. Similarly, though, just because a company name is available for registration does not mean it is free to use.

The key search is that of the trade mark register in each of the countries in which you intend to trade under the new name, along with a common law search to identify if anyone has unregistered rights, which could still prevent you from using the name.

The search of the trade mark register needs to cover not only identical marks, but also marks which could be deemed to be confusingly similar to your proposed brand. Trade marks may be confusingly similar in a number of ways. They may look similar, or sound similar or have a similar meaning. As you can see, it is very difficult to identify every single way in which a mark may be confusingly similar to your proposed brand and then to search for such marks. The only way in which to do this is to commission a clearance search company, which has the specialised software to carry out the search, and then have a legal review of the results and assess each one for the risk that your new brand will infringe it.

In addition to this, owners of relevant unregistered trade mark rights can also object to your new brand. Even if a company has not registered its brand as a trade mark, if it has made such use of it that the brand has built up goodwill and a reputation, it can then use its passing off rights to prevent your use of a name. What needs to be shown is a misrepresentation that your product or service is supplied by the owner of the unregistered rights, or that there is a link between the two brands, such that there is a real likelihood that the earlier brand or owner would suffer damage. Unregistered rights are, by their nature, more difficult to search for, as there is obviously no register of such rights.

Anything less than the full trade mark and common law search runs a real risk that you will choose and launch a new brand, only to find yourself hit with a letter before action from the owner of an earlier mark, demanding that you change your brand and pay compensation by way of damages or an account of profits for your trade mark infringement or passing off.

Something else to bear in mind when looking at a new brand, is that it’s also important to ensure that the relevant domain name is available.

The final thing to remember is that trade marks are a sword and not a shield. Even if you have a registered trade mark, it doesn’t allow you to use that mark. Someone may have earlier rights which you would infringe if you use your mark. A trade mark allows you to prevent later users from infringing your brand and also acts as a deterrent.

You can read more about how to avoid trade mark infringement and how to prevent misuse of your brands in this blog by Partner and Head of Intellectual Property Team Esther Kirwan.

If you have any questions about IP rights, please contact our Intellectual Property Team.

Disclaimer: Anything posted in this blog is for general information only and is not intended to provide legal advice on any general or specific matter.

Misleading claims in advertising – how to stay compliant without compromising creativity

Clarion — 05/11/2024

The world of advertising can be complex. In most cases, products and services are created to solve a problem – one that the inventor, be it an individual or an organisation, likely has particularly strong feelings around. It’s that drive and passion that brings the product to life. But when a business is passionate about a product and the impact it can have, that can sometimes lead to falling short of advertising codes in the UK.

In this blog, we demonstrate the surprisingly common errors businesses have made, how easily they can happen, the consequences of these failures, and how Clarion can support you and prevent you from being in the unfortunate position that many other businesses have faced.

Mistakes

Trends and consumer priorities play a tremendous role in marketing. Their evolution can have a dramatic impact on how a product is positioned in the market. Businesses follow these changes closely to ensure their products appeal to their audience, as well as increasing the potential for profitable sales performance. But without the right care and attention, following these trends can sometimes mean innocently intended phrases to keep up with the ever-changing market, may lead to the use of incorrect and misleading terms to communicate the product and its benefits.

“Sustainable”, “Weight Management”, “Substantially Cheaper”, “Zero Calorie”, and “Clears Acne” - these are all widely used examples of words and phrases (many of which you likely recognise from a vast number of products in recent years) that have broken the advertisement codes in the UK. Initially reading this, you may think that the codes and regulations take a rather harsh approach, and in some cases, you may even feel that the UK advertising codes inhibit the potential for creativity in your marketing. But it’s important to note that these codes exist to protect consumers.

The ASA do not just consider the word or phase in isolation, but the inferences that the consumer may take. A phrase claiming to benefit something, or someone, can only be used if there is research and data that can back this claim up. Taking the ’sustainable’ example, sustainability is currently a huge motion of interest, and understandably, businesses want to demonstrate how their product can be seen as sustainable throughout their marketing materials. But great care should be taken to make sure the advert is responsible, true, and not considered Greenwashing. Greenwashing is the act of making false or misleading statements about the environmental performance or impact of a business, product or service. This can occur in explicit ways, such as using environmental buzzwords like ‘natural’ and ‘eco-friendly,’ as well as in implicit ways, such as using nature-based imagery on product packaging. This is an example that many businesses, both large and small, have fallen victim to in recent years.

Some mistakes can be more apparent as to why they have been targeted by the ASA. A recent ruling from the ASA prohibited a company from publishing a customer endorsement on social media where it was stated that their supplement could reduce symptoms of conditions such as anxiety and depression. Health claims are those which state, suggest or imply that a relationship exists between a food category, a food or one of its constituents and health. The use of health claims seems to be an area of particular focus for the ASA at the moment. General health claims, i.e. those which reference a general health benefit of a food/ingredient such as “healthy” must be accompanied by a specific health claim that is authorised on the GB NHC register and meets the requirements specified in that register to make the claim.

Consequences

The Advertising Standards Authority (ASA) is an independent regulatory body with its key focus on ensuring advertisements are not misleading, or likely to be misleading to consumers.

The ASA have various powers to limit misleading advertisements. Often where the ASA rules that an advertisement has breached the advertising codes, it will require that the advertisement in question is either removed or amended so that it complies. It is important to note that the ASA’s rulings are published on their website. The ASA do have the power to refer cases to Local Authority Trading Standards (known as the legal backstop), but this is generally reserved for repeat offending where advertisers fail to heed the ASA’s rulings.

In competitive markets, where there is pressure to meet sales targets, the consequences of advertising errors may lead to significant time and money spent on corrections. In addition to consuming resources, the fact that the ASA’s ruling is published can have reputational consequences as well as affecting consumers’ trust and confidence in the brand.

Solution

You now may be thinking, how do you still have creative freedom to advertise, without the possibility of a sanction from the ASA? We understand the pressure that businesses face, especially in today's economic climate. We want businesses to continue encouraging the creative world of advertisement and marketing.

Our dedicated Regulatory team can navigate this complex area for you to ensure your advertisement is fully compliant without lacking excitement or creativity. We can review your proposed advertisement and flag any possible issues that could be problematic with the ASA and guide you on how to adapt the advertisement to still stand out in a competitive market. Where the ASA has already been in contact, we will support you through this process, by advising you on a possible strategy either to challenge the ASA where appropriate or mitigate the failures. Finally, we can support and work with you and your marketing teams to prevent this from happening again.

Disclaimer: Anything posted in this blog is for general information only and is not intended to provide legal advice on any general or specific matter.

Coronavirus - What does COVID-19 mean for my supply contracts?

Clarion — 01/04/2020

In these unprecedented times, many businesses will be worried about their supply chains. Contracts that were, until very recently, capable of performance have now been impacted by the coronavirus outbreak in ways that could not have been foreseen just a few weeks ago.

Understandably this is causing much concern. David Cunningham talks you through the options available in this situation.

Shift pattern change law

Clarion — 23/11/2017

If an employee requests a change of working pattern this will be a permanent contractual change unless you agree otherwise (for example, agreeing the change for a limited period of time). Changing the working pattern without the employees agreement will be a breach of contract.

Visit our blog to read more.

Webinar: Building Safety Act - Time to be proactive

Clarion — 07/09/2023

Since the Building Safety Act received Royal Assent in April 2022, new legislation has been rolled out and continues to be rolled out, to improve the safety and quality of residential buildings in the UK.

To help you understand and prepare for the biggest set of building regulation changes the industry has seen in decades, join us for an informative webinar presented by Clarion and Forward Validation Services, where we will delve into the key aspects of the Building Safety Act 2022 (BSA).

Our goal is to provide you with essential knowledge about the BSA and equip you to proactively comply with its provisions.

Register here.

Your speakers:

Phil Morrison – Partner, Clarion
Phil is head of Clarion’s Construction team and is recognised to have expertise in dealing with claims relating to fire stopping and the defective cladding on buildings that have arisen since the Grenfell tragedy. He is dual-qualified in English and Scottish Law and has over 25 years’ experience in both contentious and non-contentious matters in the construction industry.
William Culbert – CEO, Forward Validation Services
William boasts a wealth of experience that began with an apprenticeship and culminated in his role as Global Projects Director,
overseeing billion dollar plus contracts. At FVS, William is the driving force behind elevating building safety and quality standards, ensuring regulatory compliance, and protecting occupants and your investment. As an accomplished author, he recently collaborated with OTHM to launch a Level 5 endorsed course on Building Safety.
Tony Hans – Commercial Director, Forward Validation Services
Tony has decades of experience in running construction-related businesses in the UK, middle-east, South east Asia and Sub Sahara Africa. His collaboration with William on “Building Safety Simplified” underscores his dedication to simplifying intricate construction concepts, with a steadfast focus on building safety and compliance as his central mission.

Registration:

Can’t make the date? Don’t worry, register anyway and we’ll send you a copy of the recording.

Clarion Corporate Challenge - Sunday 8th July 2018

Clarion — 11/04/2018

Thank you to everone that has entered a team so far. We are delighted to have over 300 runners already registered to take part in the Corporate Challenge this year!

"We cant wait for the return of the Leeds 10K Clarion Corporate Challenge this summer and are looking forward to getting our running shoes on! Were incredibly proud to have been involved in this hugely popular event from the very start and are excited to welcome teams old and new in 2018!" Roger Hutton, Joint Managing Partner

The runners currently represent over 20 businesses across Yorkshire and these are just some of the reasons why they enter the corporate challenge:

engage and encourage staff;
increase job satisfaction and boost morale;
encourage team building opportunities;
enhance corporate image through positive PR;
network with leading Yorkshire businesses;
encourage a healthy lifestyle within the business; and
raise funds for a great cause of the organisations choice.

How to enter a team

You can enter your team via the Run For All website or alternatively please email laura.courbet@clarionsolicitors.com and Laura will then put you in contact with Run For All who will be able to answer any questions you may have and can help you with your entry.

Entry is £275 for a team of 5. Additional team members can be added for £55 per person.

Everything below is included in your team entry...

PRE-RACE DAY

RACE KIT - Corporate teams will receive personalised technical running shirts to wear on race day. The shirts will be branded with your company logo and team name, helping to identify your team on race day and giving you great PR exposure.
PR AND MEDIA COVERAGE - Your company name and hyperlink will feature on the Run For All website. Corporate teams signed up to the event will also have the chance to feature in profile-raising news stories concerning the 10K via the events media partners.

ON RACE DAY

RACE DAY HOSPITALITY - On the day, your team will enjoy VIP Corporate Hospitality at the Town Hall. This dedicated area will ensure our corporate teams can relax and enjoy a stress-free, pre-race morning, before taking up their position on the start line. Refreshments will be provided and teams will have a comfortable meeting place to get together especially important if the weather is not kind!
TEAM PHOTO - Complimentary team photos will be taken pre-race and presented framed post-event, as a souvenir of your day.

POST RACE EVENT

FUN SOCIAL EVENING - To be staged at a City Centre venue the week after the Leeds 10K to celebrate everyone's achievements!
TROPHIES AND PRIZES - Awards will be presented on the evening to the Fastest Teams, along with honours for Fastest Male and Female Corporate Team Members. Also, watch out for this year's new awards categories!

"I hope, like us, you and your colleagues are getting their running shoes on and pounding the streets of Yorkshire ready for race day. As everyone crosses the finish line they do so with a huge sense of achievement for themselves and their team. We look forward to running with you!" Roger Hutton, Joint Managing Partner, Clarion

Why companies are taking part ...

"Really good day and different from being a standard participant."
Hermes Europe
"Great day, good atmosphere and a good challenge. Everyone in the Arena team enjoyed the day and was proud to take part in the event."
Arena Group

"Great event and corporate challenge definitely added a fun element."
RSM

A big thank you to all the companies entered so far...

Arena Group
Arla
BBC Leeds
CCL
Epiphany Solutions
Forbes Solicitors
ITV Calendar
KPMG
Leo Group
Managed Print Services
One You Leeds (Reed Momenta)
Pegasus Group
Ritter Sport
RSM
Sky Bet
Talk Straight
The Business Desk
Walker Singleton
Whitesides Chartered Accountants
Yorkshire Evening Post

Digital Markets, Competition and Consumers Act 2024 (DMCC): An Overview

Clarion — 25/11/2024

The DMCC was enacted on 24 May 2024.

It is likely to come into effect in phases, with subscriptions reforms set to commence in or after Spring 2026.

Concerns

There have been ongoing concerns about subscriptions in the UK and how consumers may fall into unintended subscription traps.

A subscription trap refers to when a consumer is tied into paying regular payments for subscriptions, they may not necessarily need or want, or that they may have forgotten about.

There are a few reasons they may fall into these trap:

they are unable to cancel;
the way to cancel is unclear or onerous; and/or
they forget the subscription is ongoing.

DMCC

The DMCC addresses some of these concerns, with the intention to protect consumers.

For this reason, parts of the DMCC are drafted heavily in favour of consumers, rather than the companies offering subscriptions.

The main elements of the DMCC in relation to subscription contracts include:

how the subscription contract needs to be clearly explained to consumers at the start;
free trial regulation and how consumers may exit the subscription at the free trial stage;
increased notification obligations (e.g. reminding consumers they are in a subscription and their ability to cancel); and
a requirement for an easy cancellation process.

A few contracts fall outside the scope of the DMCC, including those excluded for policy reasons or regulated under other rules.

Sanctions

If a company fails to comply with the DMCC, the consumer may have the right to cancel the subscription and be entitled to a refund.

There are also offences for failure to comply with certain aspects of the regime and fines may be issued – the CMA may impose fines of up to 10% of turnover.

What should you do?

If your company offers a subscription to consumers, we would suggest that you review your:

sign up process and pre-contract information;
free trials;
cancellation policy (for free trials or otherwise);
cancellation process; and
consumer notifications.

If you require help with your subscription contracts, please contact our Commercial Team who would be happy to help.

Disclaimer: Anything posted in this blog is for general information only and is not intended to provide legal advice on any general or specific matter.

Building Safety Act 2022: Changes to the Defective Premises Act 1972

Clarion — 13/02/2023

One of the significant elements of the Building Safety Act 2022 (BSA) has been its amendments to the Defective Premises Act 1972 (DPA). Previously the limitation period to bring a claim under the DPA was 6 years from the date of completion of the works. This limitation period has now been extended to 30 years retrospectively for claims accruing before 28 June 2022 and to 15 years for claims accruing after 28 June 2022. Given these extended limitation periods, we are likely to see an increase in claims referencing the DPA in relation to dwellings where other methods of recourse are no longer available. What constitutes a dwelling can often be a point of contention when considering whether buildings such as student accommodation or mixed-use buildings fall within the definition. For the purpose of the DPA, the defining characteristic of a dwelling would appear to be that of exclusive possession for the purpose of living.

The amendments to the Defective Premises Act will undoubtedly be of interest to those involved or who have been involved in the construction of dwellings. House builders and other interested parties should consider how they might limit their exposure to claims for past projects where the contract liability period may have expired but where the DPA limitation period is still intact, and how they might seek to limit their exposure to claims in future projects.

Defective Premises Act: Who owes a duty and to who is it owed to?

The Defective Premises Act applies to those taking on work for, or in connection with, the provision of a dwelling which provides that, depending on the specific facts of each project, liability under the DPA could extend to architects, designers, consultants and developers as well as contractors. Those taking on work for or in connection with the provision of a dwelling must ensure that they carry this out in a workmanlike and professional manner, with proper materials to ensure that the dwelling will be fit for habitation when completed. The amended DPA is now extended to include work in relation to any part of a relevant building which brings existing buildings (e.g., refurbishment works and remedial works) under the DPA although this amendment only applies prospectively.

Those who owe a duty, owe it to a broad group of individuals and/or entities. The DPA provides anyone with a legal or equitable interest in a dwelling the right to bring a claim.

Defective Premises Act: Fitness for habitation

The term “fitness for habitation” has been interpreted by the courts generally.

In Rendlesham Estates Plc v Barr Ltd [2014] EWHC 3968 (TCC) Edwards-Stuart J in his judgement concluded that “for a dwelling to be fit for habitation within the meaning of the Act, it must, on completion (without any remedial works being carried out):

(a) be capable of occupation for a reasonable time without risk to the health or safety of the occupants…; and

(b) be capable of occupation for a reasonable time without undue inconvenience or discomfort to the occupants.”

Furthermore, in Harrison v Shepherd Homes Ltd [2011] EWHC 1811 (TCC) it was decided that “any significant defects in foundations are properly matters which could be said to give rise to a lack of fitness for habitation.” Importantly, when considering how to interpret “fit for habitation”, Ramsey J referred to Bole and Another v Huntsbuild Limited [2009] EWCA Civ 1146 wherein Dyson LJ said:

“In my view, it is clear that the judge meant that defects which render a dwelling unfit for its purpose, are defects which render it unfit for habitation. The obvious purpose of a dwelling is for it to be occupied and inhabited safely and without inconvenience.”

Importantly, it would therefore seem as though a dwelling must be capable of being occupied “safely and without inconvenience” for it to be deemed fit for habitation. Although liability under the Defective Premises Act is relatively untested in relation to defects which cause fire safety issues, it could be argued that defects which cause a dwelling to be deemed a high fire risk will likely satisfy the threshold of whether a dwelling being seen to be incapable of being occupied safely and without inconvenience.

Defective Premises Act: Common parts

Duty holders must also be wary of their potential liability in relation to communal facilities/parts in blocks of flats, apartments, student residences etc. which do not form part of any particular dwelling. Although communal facilities do not in their own right fall within the definition of a dwelling for the purpose of the DPA the structural and common parts may be seen to be constructed in connection with the relevant dwelling. Nonetheless, defects in common parts will only be relevant to the extent that they impact the fitness for habitation of a dwelling.

Defective Premises Act: Past projects

For works completed between 12 and 30 years before 28 June 2022, the availability of evidence to prove the condition of a dwelling at the completion is likely to be a significant hurdle with many businesses having destroyed records. Entities taking on work for or in connection with the provision of a dwelling should retain and/or retrieve documents in relation to past projects until the limitation period under the DPA has expired.

The BSA provides two possible defences to claims brought about by virtue of the extended limitation periods under the Defective Premises Act:

“Where an action is brought that, but for subsection (3), would have been barred by the Limitation Act 1980, a court hearing the action must dismiss it in relation to any defendant if satisfied that it is necessary to do so to avoid a breach of that defendant’s Convention rights.

Nothing in this section applies in relation to a claim which, before this section came into force, was settled by agreement between the parties or finally determined by a court or arbitration (whether on the basis of limitation or otherwise).”

As such, this will allow courts to dismiss claims where the defendants can show that the retrospective extension of the limitation period infringes on their right to a fair trial. The application of this defence is yet to be tested and it is unclear how the defence will play out in court. It has been suggested that a possible argument of a breach of Convention rights due to the lack of available documentation may be available to the defendants although only time will tell how this argument will stand up in court.

Defective Premises Act: Future projects

In the negotiation of contracts for future projects, duty holders should ensure that there are adequate warranty, guarantee and insurance provisions in place to sufficiently apportion the risks associated with the revised DPA.

Duty holders should ensure that they have a sufficient warranty and insurance protection and which extends to the duration of the limitation periods under the DPA.

Duty holders must bear in mind that the Defective Premises Act cannot be contracted out of.

If you have any queries or would like to discuss any of the points raised in this blog, please contact Brandon Pizaro in our Real Estate team.

For more updates on the Building Safety Act 2022, please read our latest blogs:

Disclaimer: Anything posted in this blog is for general information only and is not intended to provide legal advice on any general or specific matter.

Supply chain contract management blog series #3: Battle of standard contractual terms: how to ensure your ‘shot’ hits the target

Clarion — 08/08/2022

Companies will often have standard terms and conditions. Where parties want to contract using their own terms – and each send a copy to the other, creating a ‘battle of the forms’ – which terms will apply?

This blog explains the general position – ‘last shot fired’ – and looks at a recent decision that shows that the Court may depart from this common practice in certain circumstances.

We also set out some tips and tricks so that you can put yourself in the best position and ensure you are the eventual Terms champion.

Battle of the forms

Parties will often negotiate and agree terms that apply to a particular deal. In those circumstances, it is generally clear which terms are intended to apply.

In other circumstances two (or more) parties send their standard terms to the other, stating that they apply. Both terms cannot govern the same agreement and so only one winner will emerge.

Last shot fired: the general position

The traditional approach is that the terms presented last before the contract was formed will apply. You will look at when each of the terms were offered, and any rejection or acceptance of those terms either explicitly or by conduct.

So where Party A makes an offer on Party A’s conditions and Party B accepts that offer but on Party B’s conditions – and the parties then perform part of the contract – Party B’s contract applies

In unclear circumstances, the Court will also consider some general principles when deciding on a battle of the forms between Party A and Party B:

Party A must give reasonable notice to Party B of its terms, and then must be consistent and unequivocal in following those terms.
Parties can rely on its previous dealings – which can be as little as three or four occasions over a relatively short period – to understand the terms that apply to the current contract.
Provided reasonable notice has been given, the Court will also consider any trade or industry standard terms for the type of transaction in question.
Terms can be contained in or referred to in invoices sent subsequently to documents forming the contract – however, an invoice sent following a contract that was clearly accepted on standard terms may be too late.

Care must be taken at each step

Notwithstanding these principles, the parties should take great care at every step. For example, a supplier delivered cases of whisky to a buyer with a delivery note that included the seller’s terms. However, the buyer stamped the delivery note as being accepted under buyer’s terms.

The Court held that the buyer’s stamping of the delivery note constituted their communication of a counter-offer on the buyer’s terms, and that the supplier implicitly accepted this counter offer by handing over the goods. The buyer was deemed as firing the last shot and their terms applied.

First shot fired: importance of parties’ conduct

Contrary to the ‘last shot’ doctrine, the Court decided in TRW v Panasonic, that the ‘first shot’ was the winner of the battle of the forms.

TRW had signed a customer file in 2011, which contained Panasonic’s general conditions. Whilst this did not contractually bind TRW Ltd to purchase any products from Panasonic, the action of signing the customer file meant that TRW had acknowledged the general conditions that would apply to future contracts.

TRW had effectively committed themselves to the general conditions of Panasonic through their conduct, despite the purchase orders they later sent which stated that orders were on TRW’s standard terms. The Judge noted that crucially ‘the last shot missed the target.’

Significance

Terms which are not your own being incorporated into the contract could adversely affect:

the limitation period for liability under the contract. For instance, the other party may reduce this time period to try and avoid claims being brought against them;
the jurisdiction in which any claim can be brought. Whoever’s terms prevail will determine the jurisdiction, this could potentially lead to a claim being struck out where the court do not have the relevant jurisdiction (this was the eventual outcome of TRW v Panasonic); or
the methods in which the contract may be terminated will likely be more favourable for the party whose Terms are incorporated.

Tips and tricks – how to put yourself in the best position to win the battle of the forms:

We have provided below some practical tips to put your company – and its terms – in the best possible position. There is, of course, no guarantee of success.

Agree framework agreement at the start of the relationship that will apply to all future arrangement, effectively mirroring TRW v Panasonic.
Include your standard terms in all pre-contractual correspondence/documents. Creating this automatic workflow makes it more likely that your terms will be the ‘last shot’ before the contract is concluded. This could include putting a link within documents, letters and emails to your website page in which the Terms are noted.
Confirm in all correspondence and documents that you are making an offer and that your terms apply. This will ensure that you give the other party clear and reasonable notice that your terms will apply.
Act only once your standard terms have been sent to the other party. A supplier should ensure terms are agreed before acting on a purchase order, instead sending an acknowledgment of the order alongside your terms and acting once accepted.
Have a set order form for the purchase/delivery of goods that includes your terms.
Introduce company procedures to identify when the other party has sent their terms. This will avoid any accidental performance under any conflicting terms.
Address the other party’s standard terms in direct and written negotiations. This will resolve conflicting terms at the outset.
If a course of dealing between the parties can be established, this can displace the traditional offer and acceptance approach to contractual discussions. This will allow for terms to be incorporated into the contract where it can be evidenced, they have been used in other transactions between the parties.

Note: you will need to be able to show a consistent course of dealing either over a period of years or through a number of transactions. This should only be argued as a last resort if your terms have already been challenged.

How can we help

We regularly provide virtual and in-person training on best practices and how to implement good contracting practices. We also provide specialist advice on the terms that are likely to apply, and your rights and obligations under that contract. Should you need detailed or tailored advice, please contact Rob Stewart in our Commercial Dispute Resolution team.

Disclaimer: Anything posted in this blog is for general information only and is not intended to provide legal advice on any general or specific matter.

GDPR FAQs - Employment Contracts - Do they need to be updated?

Clarion — 14/11/2018

The General Data Protection Regulation 2016 (“GDPR”) came into force on 25 May this year. The hype around GDPR was unprecedented in terms of the introduction of a new piece of legislation. Now that the dust has settled, it’s clear that a number of questions still remain for organisations that process personal data.

We have produced a series of mini blogs to answer those questions. The mini blogs will focus on 4 key areas: HR; Regulatory; Data Subject Rights; and Marketing. Questions such as “Do our employment contracts need to be updated?”; “Do we need to notify the Information Commissioner’s Office of each and every breach of GDPR?”; “Do we have to provide all documents requested in a subject access request?”; and “Can we continue to send marketing to our clients?” will all be answered, along with many others.

GDPR FOR HR – Do our employment contracts need to be updated?

One question often asked is how GDPR affects employment contracts. GDPR does not require employment contracts to be updated. However, many employment contracts were drafted prior to 25 May on the grounds of the employee giving consent to the employer processing their personal data. A typical pre-25 May employment contract may include a clause similar to the following:

“For the purposes of the Data Protection Act 1998, you give your consent to the holding, processing and editing of your personal data for all purposes relating to your employment and the performance of this agreement including but not limited to legal, personnel, administrative and/or management purposes”.

Under GDPR, employment contracts should no longer seek consent from employees for a few reasons:

Consent obtained within an employment contract is unlikely to be GDPR compliant. Consent must be freely given, and it won’t be freely given if it’s provided within a document that the employee is required to sign to commence employment;
There’s no need to rely on consent for the majority of processing of employee personal data. Organisations should instead rely on legitimate interests (backed up by completion of a legitimate interests assessment), fulfilment of a contract or compliance with a legal obligation. In the case of special categories of data (known as “sensitive personal data” under the Data Protection Act 1998), processing is permitted where it is carried out in the field of employment; and
The rights of data subjects are more limited where an organisation relies on a ground other than consent.

This doesn’t mean that consent from employees is never required. If you carry out processing that isn’t necessarily anticipated or expected by an employee, you should still seek consent in a separate document that sits outside of the employment contract. For example, if you collect diversity information on a non-anonymous basis, consent should be sought to process that data (it may be simplest to do this by providing a “prefer not to say” option in any forms used to collect the data) and occupational health assessments will also need to be carried out with the consent of the employee.

If you require assistance with updating your employment contracts for GDPR, please contact Florence Maxwell or Matthew Hattersley.

Navigating business distress in a challenging environment

Clarion — 15/05/2025

With businesses across the UK facing ever-increasing pressure, the prominence of distressed businesses is on the rise. From economic uncertainty to geopolitical disruptions and tightening credit conditions - the landscape is constantly becoming more and more complex, meaning there’s a need for more careful planning when it comes to navigating difficult situations.

For many businesses in distress, it’s easy to fall into the trap of making rash decisions and achieving a less-than-favourable outcome. To avoid that, it’s vital to identify problems and act early. In this article, we’re exploring the nature of business distress across the UK, and providing an intuitive guide on how to navigate the challenges and capitalise on unique opportunities…

Businesses are facing rising economic pressures

Rising costs and financial pressures are creating uncertainty for businesses from a number of angles:

Higher interest rates are making borrowing more expensive

Currently, the Bank of England’s base rate is standing firm at 4.5%. Because of the persistent inflationary pressures, it’s difficult to see any significant reduction in the near future. This means that many businesses who may have previously relied on low-interest debt to finance their growth and operations are now faced with higher repayment costs, creating greater financial strain.

Employment costs are being driven upwards

With the rise in employer National Insurance Contributions (NICs) and increases to the National Minimum Wage and Living Wage, businesses are experiencing a surge in employment and workforce costs, particularly in sectors such as hospitality, retail, and social care.

Inflation is creating a challenging environment

Despite a dip from its initial peak, inflation is continuing to rise again, creeping back up to 3%, driving even further costs for businesses across their supply chains.

But there’s more at play than just costs in relation to finances. Particularly recently, there has been a significant shift in consumer and market dynamics:

Consumer confidence is weakening

With stretched household budgets, consumers are being more discretionary with their spending habits. For customer-facing businesses in sectors such as retail, hospitality, and leisure services, this reduced spending and demand means declining revenues.

Tariffs and trade barriers are limiting market access

Post-Brexit trading conditions combined with global supply chain disruptions and rising inflation are having a distinct impact on import and export costs. This means even more financial strain for businesses where international supply chains form part of their operations.

Touching on global matters, a multitude of global and political disruptions are also introducing a wide range of challenges for businesses:

Geopolitical events are creating further financial strain, as well as logistical challenges

With the war in Ukraine driving up global energy and food prices, businesses are still developing strategies to manage these difficulties. But other global events are also creating issues. For example, attacks on shipping routes in the Suez Canal by Houthi rebels have had a significant impact on global freight transport, leading to a 50% reduction in shipping traffic and a notable increase in costs and delays. These delays within supply chains are introducing a wealth of challenges to industries and businesses reliant on just-in-time manufacturing and global distribution networks.

The UK itself is also witnessing a number of further changes as businesses begin looking ahead to the 2025 Autumn Budget for potential relief, or to prepare for further challenges. But in the meantime, HMRC is taking a more aggressive, hardened stance on debt recovery, leading to an increase in winding-up petitions against businesses with overdue tax liabilities. At the same time, creditors are becoming more cautious, with lenders and suppliers focusing on building cash reserves and insulating themselves from financial risk, making it more difficult for businesses to access credit or extend their payment terms.

The rise in business financial distress

Recent data has shown a significant increase in businesses facing financial distress. This stress can be broken down into two categories - ‘critical’ and ‘significant’.

For ‘critical’ financial distress, there has been a 50.2% quarter-on-quarter rise in businesses in this position, affecting 46,853 companies in total. Almost all sectors (21 out of 22) have seen an increase, with the worst-hit industries being hotels and accommodation (+83.6%), leisure and cultural activities (+76.5%), and general retailers (+47.6%). This highlights that businesses operating on low margins and those most-affected by the NIC and minimum wage increases are facing the most financial distress.

For ‘significant’ financial distress, there has been a 3.5% increase in Q1 vs Q3 2024, with a total of 654,765 UK businesses now being classified as being in this position. The most affected sectors in this classification looks a little different to the above, with construction (97,603 businesses), support services (90,375 businesses), and real estate and property services (75,394 businesses) being the most severe. The businesses in ‘significant’ financial distress typically rely heavily on financing, and are likely struggling to absorb the increased borrowing costs and supply chain inflation.

How to manage distress from a legal and strategic perspective

Effectively navigating distress in business can feel overwhelming. But a tremendous part of achieving a successful outcome involves developing a firm understanding of your situations, and your options.

Directors’ Duties

If a business finds itself in financial distress, it’s crucial to understand that the responsibilities of directors shift towards creditors, rather than shareholders. It’s essential for directors to act responsibly, as if not, then that can lead to personal liability for wrongful trading or misfeasance as well as face potential director’s disqualification. With that in mind, it’s best to intervene as early as possible. With the right professional advice, directors can begin to address insolvency risks before they escalate, helping to mitigate any personal exposure.

Refinancing and alternative funding

Mainstream funding has long been a complex and difficult source to acquire for SMEs, but even more so now that traditional banks are tightening their lending criteria. But alternative options are available, including challenger banks, bridge funding, and private equity. To increase the chances of success, it’s important to have a robust financial plan in place. At Clarion, we have an excellent network of alternative funding providers, and can provide professional legal support and advice to help you navigate the difficult nature of securing funding.

Operational restructuring and cost optimisation

For many large businesses in the UK, a focus has emerged around ‘right-sizing’ operations. This has become an emphasised element of strategies in order to help align the business with the current market conditions. This often includes reducing costs whilst simultaneously improving efficiency, and a large number of businesses are exploring employment and workforce cost restructuring as a key part of this, including the use of AI and automation. For businesses looking to optimise their workforce and employment costs, our Employment team are here to help - get in touch with our team of expert lawyers to find out more about how we can support you through the process and ensure that you remain compliant.

Contract management and litigation

Unprofitable contracts are a perpetual source of damage in situations of financial distress. This leads to a number of businesses actively looking for ways to exit those contracts. For those exploring their options in this area, it’s vital to think about renegotiation where possible, so that contracts can be drafted with more favourable terms. But where this isn’t a possibility, businesses can approach with litigation to either challenge or exit unfavourable agreements. On the other hand, businesses can also lock in suppliers or customers with contracts to maintain business stability. We understand that contracts and negotiations can be complex, but we can help - get in touch with us to find out more.

Capitalising on opportunities

Perhaps most importantly of all, it’s important to understand that financial distress doesn’t always mean insolvency. As we mentioned earlier, approaching situations at the outset and intervening early means businesses are likely to open up a lot more doors when it comes to the options available to them.

Because effective intervention means taking the right legal, financial, and operational strategies, and if you seek legal guidance early, you can gain a greater element of control over outcomes whilst protecting directors and positioning the business for a more successful recovery or restructure.

And for those entrepreneurial businesses that may be holding cash reserves, it’s important to begin identifying strategic acquisition opportunities, as distressed mergers and acquisitions are likely to see increased activity with businesses looking to acquire distressed assets at reduced valuations.

To find out more about how we can help you and your business, please don’t hesitate to get in touch with us.

Disclaimer: Anything posted in this blog is for general information only and is not intended to provide legal advice on any general or specific matter.

If someone has copied my product, but it's already on the market, there's not a lot I can do about it, is there?

Clarion — 14/10/2019

Answer: If an infringing product is already being advertised or sold (which is often how you would find out about it), there are a whole host of remedies – financial and otherwise - that you can claim, including an injunction to prevent further sales.

If you find that your intellectual property (IP) rights are being infringed, it’s important to consider taking action quickly. Often with IP infringement matters, the first remedy to seek is an interim injunction, to prevent the continued infringement until trial. However, you have to act quickly to be able to obtain an interim injunction. Delay may prevent you from getting one, even if the merits of your infringement claim are strong.

If you decide not to go for an interim injunction, usually the first step is a letter before action to the infringer seeking undertakings that they will stop infringing and requesting compensation, along with other remedies. Even without Court action, you can obtain many of the remedies which a Court can order as part of settlement.

The usual remedies in IP cases are:

damages or an account of profits;
an injunction to prevent the infringement;
delivery up, or destruction of, the infringing articles/materials;
payment of legal costs and interest; and
publication of the decision, or an apology.

An account of profits is based on how much the infringer has made through selling the infringing product. You are entitled to choose whether to claim either an account of profits, or damages, and you can have disclosure of the infringer’s financial records to help you make this decision.

On top of the financial remedies, there are also others of real value. The key remedy being to prevent the infringer from continuing to carry out the infringing acts. If this is set out in a Court order, rather than in contractual undertakings, then any breach amounts to contempt of Court. Delivery up to you of the infringing material/articles means that you can ensure that they do not somehow find their way back onto the market.

Before you threaten any action, you need to identify the IP rights that exist, be sure that you own them and be satisfied that they are infringed. It’s dangerous to threaten to bring infringement action before you have assessed this, or if you have a very weak case. This is because, for certain IP rights, there are groundless threats provisions. These provisions mean that if you threaten to bring infringement action for certain infringing acts, and the party threatened is not infringing, they can successfully sue you for making groundless threats.

The key to enforcing your IP is to know what rights you have. Even if you don’t own a registered trade mark, design or patent, there are other rights that you may be able to rely on, such as passing off rights, unregistered design rights and copyright. Whilst enforcing registered IP can be easier to enforce in some scenarios, you shouldn’t forget about these other rights as they can often form a strong basis to prevent infringers benefiting from the investment you have made in your products and services.

Seminar: Construction Law Update

Clarion — 31/10/2023

Agenda

We invite you to our upcoming in-person seminar, where we will provide insight of the most recent legal developments in the construction sector including JCT Contracts and NEC Contracts. You’ll gain the knowledge and awareness necessary to stay ahead in a dynamic and ever-evolving industry.

We are pleased to be joined by quantum expert, Damian Wilkinson. Damian will present on the principles and practice of the compensation event process of the NEC4 Engineering and Construction Contract.

There will be time for the audience to ask the speakers questions at the end of the seminar.

Register here.

Your speakers

Damian Wilkinson - Director, Quantum Expert Solutions

Damian is a testified quantum expert witness, an accomplished expert advisor, and claims manager, with a wealth of experience in dealing with the resolution of complex issues and disputes. Damian is a Chartered Quantity Surveyor, a Fellow of the Royal Institution of Chartered Surveyors, and a Fellow of the Chartered Institute of Arbitrators. Damian is an accredited NEC Project Manager and an NEC tutor.

Phil Morrison - Partner & Head of Construction, Clarion

Phil has over 25 years of experience in both contentious and non-contentious matters. Phil is recognised to have expertise in dealing with claims relating to fire stopping and the defective cladding on buildings that have arisen since the Grenfell tragedy. Phil is also Chairman for the Chartered Institute of Arbitrators’ North East Branch.

Event schedule

09:00 - 09:30 Registration, networking and breakfast

09:30 - 10:30 Seminar presentations and Q&A

Register here.

Seminar: Building Safety Act and Fire Regulations Update [Part 1]

Clarion — 09/01/2023

It’s been over five years since the Grenfell tragedy on 14 June 2017 and as a result, the UK government has responded with immediate, interim and remedial measures.

The most significant outcome has been the government’s Building Safety Act 2022 and the Fire Safety Regulations 2022, which has far-reaching implications for building owners, occupiers and those involved in the construction industry. These acts are now in force although many of the provisions are not due to become law for another 6 to 12 months, requiring the formation of secondary legislation and a transition plan to prepare the industry for the new regime.

To help you prepare for what’s to come in 2023, Clarion is hosting two half-day seminars with insights from industry experts. The two seminars will cover different topics on the provisions already in place; the secondary legislation to come; how this will shape the industry, and the implications for manufacturers, contractors and those who own, operate and manage buildings.

Register your place here.

Speakers for the seminar on 8 February:

Agenda:

08:30 - 09:00 Registration, networking and breakfast

09:00 - 12:30 Speaker sessions

12:30 - 13:00 Speaker sessions

13:00 Lunch and networking

Registration

Spaces for the two seminars are limited, so we recommend you reserve your spot as soon as possible. You can register for either one or both events.

Register here for seminar part 1 on 8th February 2023

Register here for seminar part 2 on 8th March 2023

If you have any questions about this event, please contact alanta.foley@clarionsolicitors.com.

GDPR and Conference Calls – Avoiding a Zoombomb!

Clarion — 16/04/2020

Most conference call facilities require, at the very least, name and email address of users to enable them to sign up to use the service. We should all be able to expect that those details are protected and that the data is processed in accordance with GDPR. Zoom has, however, received a significant amount of negative publicity about the security measures it has in place.

Read our blog to find out the steps an organisation should take to protect their data whilst using conference call facilities.

Robots could be the answer for Yorkshire manufacturing’s post-Brexit skills shortage

Clarion — 08/03/2018

The Robots have arrived! But, are they actually helping to improve the poor UK productivity figures, and what are the employment and cultural effects of such change?

Following our popular automation seminar in 2015 which promised The robots are coming, were hosting a follow-up event on 27th March.

Well have a host of experts on hand to explain how advances in robotics and artificial intelligence are helping businesses to stay ahead not only in the UK, but around the world well even have some industrial robots in action from robotics company, Active8 Robots! Theres no doubt that over the last few years theres been an upsurge in interest in automation, largely driven by reducing price points which are making payback quicker and, therefore, making investment more viable. This has, perhaps, been further accelerated by the approach of Brexit and the impact it is likely to have on sourcing labour. Whats more, given the repetitive, mundane nature of many tasks, theres also a view that these may be better performed by robots that can work around the clock. Would this enable people to move up the chain in terms of skills, or will it result in an increase in unemployment?

SEMINAR: Powering sustainable manufacturing: Unlocking the ‘E’ in ESG for competitive advantage

Clarion — 11/09/2025

Environmental sustainability is a top strategic priority for manufacturers. With increasing demands from regulators, investors, major customers, and procurement teams, the ‘E’ in ESG is no longer optional. It is becoming a key factor in how contracts are won, risks are managed, and long-term competitiveness is maintained.

As heavy energy users, manufacturers are under pressure to reduce consumption and costs both on-site and across their supply chains. Scope 3 emissions are often the toughest part of the net zero puzzle. Without a clear plan to address them, your sustainability strategy and your competitive edge may fall short.

Join us for an executive-level breakfast seminar where we’ll explore:

How to tackle environmental compliance and reporting
Considerations when planning an energy reduction project on-site
What Scope 3 really means for manufacturers
How supply chain sustainability can create real commercial value,
from securing contracts and investment to improving efficiency
and resilience

This practical session will show how manufacturers can move beyond box-ticking and turn ESG into a source of commercial opportunity. We’ll also share a client case study, where you’ll hear first-hand about the benefits and commercial advantages of embedding sustainability in practice, including how they are tackling Scope 3 and supply chain challenges.

Your speakers

John Rastrick, CEO, Flotilla - With 20 years in private equity as UK Sector Head, Regional Head, and Investment Committee member, John now leads Flotilla. A qualified corporate lawyer, he has held Chair and NED roles across diverse companies and is currently an investor and independent NED at JMG Group.
Christian Hellmund, Head of Energy and Infrastructure, Clarion - Advising clients on ESG regulation, strategy
and legal risk. Christian advises on a broad range of UK and international energy and infrastructure projects, including power transmission, decentralised energy, energy-from-waste, storage, and renewables such as solar, wind, hydro, and bioenergy.

Agenda

8.30am - 9.00am: Breakfast & networking
9.00am - 10.30am: Presentations and Q&A
10.30am: Close, networking and refreshments

To register for this event please follow this link: https://buytickets.at/clarionsolicitors/1846882

Insights & resources

In the lead-up to the event, we’re sharing detailed insights and practical considerations for manufacturers looking to develop more effective and efficient approaches to their energy strategies. These resources complement the themes of our seminar and provide additional guidance for businesses on their sustainability journey.

Please read our first article here: Energy in manufacturing – navigating an ever-evolving landscape

Robotics and Automation in the Manufacturing Sector

Clarion — 24/05/2018

The recent conference at Clarions office was a sell out event, perhaps indicating the increasing focus by the manufacturing sector on this agenda. The event was run in conjunction with Made in Yorkshire, Rosti Automotive, Cimlogic, Premier Farnell, Holmesterne, HSBC, BHP and Active8 robotics, all of whom have a passion in seeing a vibrant regional manufacturing sector.

The sector faces some interesting challenges around skills shortages and productivity, but also opportunity in relation to innovation, internationalisation and collaboration. Following the event, we were keen to get a quick sense of where local manufacturers are in relation to either having adopted this technology, or where there are plans to invest in robotics/automation. The costs have reduced in recent years, meaning the business case/payback time has improved, making it far more commercially viable.

We have set out a few quick questions on the link below which should take no more than a minute to complete we will share the summarised report in due course which will be produced on an anonymised basis.

https://www.surveymonkey.co.uk/r/ZVJR7JD

Employment Law Bulletin September 2023

Clarion — 11/09/2023

With September upon us, it’s not just back to school for kids – there are updates, learning opportunities and training galore for employers too. Medicine and money take centre stage in this month’s employment law bulletin, and we also have a number of webinars coming up to keep you up to date with all things employment law.

Upcoming webinars

Rising Stars - Handling disciplinaries effectively

Employers continue to face a wide range of challenges, balancing the changing expectations of the workforce in the current climate against the needs of the employer’s business. It is crucial that employers understand how to handle disciplinaries effectively, for many reasons: to avoid employment tribunal claims and the resulting legal and financial risk, for effective management of the workforce, to ensure fairness, consistency and transparency and to increase employee engagement and retention.

During this webinar, we will provide an overview of the legal issues and processes involved in disciplinaries and give you the confidence to tackle them.

Click here for more information and to register.

Employment Law Update

Our employment law experts will update you on the key changes in employment law by reviewing important case law developments, discussing the current challenges facing employers and looking forward at what may be on the horizon.

The session will provide practical guidance and ensure you are up to date with legal changes. It is suitable for HR professionals and anyone who manages people.

Click here for more information and to register.

New ACAS sickness guidance

ACAS (Advisory, Conciliation and Arbitration Service) have published revised guidance on managing sickness absence. The guidance includes new sections on recording and reducing sickness and absence trigger points, as well as some key and timely reminders for employers as we move towards the winter season:

Discretionary sick pay schemes - If you have a scheme which is discretionary you must be consistent in the way that you apply it, and in particular you must ensure that there is nothing discriminatory in the way that it is applied. The same rules must be applied to part-time and full-time employees.

Fit notes - A fit note is required if an employee is absent due to sickness for more than 7 calendar days – if the employee is part-time, or if some of the days of absence fall at a weekend when an employee was not scheduled to work, a fit note is still required. You cannot ask an employee to get a fit note if they have been absent for fewer than 7 calendar days.

Medical reports - If an employee has been persistently unwell, or if there are wider concerns about the employee’s health, it could be useful to ask for their permission to seek information from their doctor. Written permission is required from the employee to do this. You should tell the employee why you are seeking the report, that you will only be given information that is relevant to the situation and not their full medical records and you should explain who will see the report. The report should not be shared without the employee’s permission. Note that the employee can ask their doctor not to share information they think could be damaging, or that they think is not relevant.

The updated guidance can be found here and the team are on hand to discuss further should you need assistance with sickness absence management

New immigration fees

On Friday 15 September, an announcement was made confirming that new fees for visas will be coming into force on 4 October 2023, giving limited time for employers and businesses to adjust to the change.

The majority of fees for work, business visits and study have increased by between 15 and 20%. Administration fees for those who sponsor overseas workers have increased, as have fees for both priority visa processing and settlement. To sponsor a Skilled Worker for up to 3 years, the fee will go from £625 to £719. To sponsor them for over 3 years, the visa fee will go from £1,235 to £1,420, so the change is not insignificant.

It will therefore be important for those involved in recruitment to communicate with the rest of the business and manage expectations in terms of the increased costs of recruiting from overseas, as well as the usual considerations in terms of timescales and other risks.

We are not currently aware of any plans to increase the Immigration Skills Charge, which will come as a relief for many businesses. The Health surcharge is set to increase a whopping 66% to £1,035, albeit the date is still to be confirmed as the legislation required for that is a little more complex.

Speak to our Business Immigration team for support with what this might mean for you as an employer, managing and communicating these changes, and with overseas recruitment in general.

Managing a sickness absence dismissal

If an employee has been absent due to sickness for a lengthy period of time, is it possible to dismiss the employee fairly? Yes, was the answer in the case of Garcha-Singh v British Airways plc [2023].

The employee worked as cabin crew and after his sickness absence had lasted for a year, he was given notice that his employment would be terminated. He appealed against this decision, and over a further one-year period his termination date was extended six times to allow him more time for recovery. Eventually he was dismissed, and he argued that this was unfair because there had been a breach of BA’s sickness management policy.

The Employment Appeal Tribunal found that any breach was actually to his advantage because BA had been more generous than the minimum standard set out in its policy, and therefore the dismissal was fair.

Actions:

Before considering the dismissal of an employee who is absent due to sickness, seek a medical opinion about the likelihood of the employee returning to work in the near future.

When seeking the medical opinion ask for a viewpoint on whether the employee is disabled as defined in the Equality Act 2010. If the employee is disabled, then reasonable adjustments must be made.

There is no requirement to follow the ACAS Code of Practice: Disciplinary and Grievance Procedures when dismissing due to sickness. Therefore, disciplinary warnings are neither required nor appropriate in genuine sickness cases.

Consider if an employee could return to a different job, if their health problems are related to specific work duties.
If a medical practitioner gives a date by which the employee is expected to return wait to see if the employee does return before taking any action

Talk to an employee before making assumptions about their activities

If an employee is absent due to sickness it could be that they need to be sat at home quietly recovering. However, employers should avoid making assumptions about what their employee can and cannot do when they are sick. It could be that getting out of the home will actually help their recovery.

In Pilkington UK Ltd v Jones [2023] the employee had problems with his shoulder, resulting from radiotherapy he had received to treat cancer at a young age. Due to the pain and discomfort the employee also developed depression and anxiety. A colleague reported seeing him wearing heavy duty boots, and as a result the employer hired a surveillance company to covertly follow him and check his activities. He was seen helping a friend, using a hosepipe and visiting a garden centre. He was dismissed.

He successfully brought claims of unfair dismissal and disability discrimination. The activities he was doing were helping his mental health and were not in conflict with the reasons for his absence.

Actions:

If an employee who is absent due to sickness is accused of doing activities contrary to their absence talk to the employee about what has been observed.

An employee can be too ill to work, but still well enough to do other activities. Keep an open mind about this, and if appropriate seek medical input.
Surveillance should only be considered in extreme circumstances, and there are privacy considerations to balance. Seek advice from the team before resorting to this option.

Extended time to bring a disability discrimination claim

When making a claim of discrimination the claimant is required to bring the claim to the Employment Tribunal within three months of the event in question. If it is a series of events the claim must be brought within three months of the last occurrence.

In Mackenzie v the Chief Constable of the Police Service of Scotland [2023] a claimant has been allowed to proceed with her discrimination claim despite being more than two years late in bringing the claim.

The claimant had applied to join the Police Service and was accepted, subject to certain checks including a medical. She disclosed that she was taking anti-depressants and was told that she could not be considered because of the ‘two-year rule’ – that applicants could not have taken anti-depressants in the past two years. She complained, with no success, and tried to take legal advice, again without success. Eventually, she read of another individual who had challenged the rule, contacted the solicitor involved and brought a claim with the solicitor’s support.

The claim was allowed. The Employment Tribunal accepted that she was unaware of the time limit to bring a claim and she lacked the confidence to bring a claim without appropriate support. As soon as she saw the article, she got the support, and her confidence was bolstered.

She will now have to show that she was disabled, and that the ‘two year’ rule (relating to anti-depressants) amounted to discrimination.

Actions:

Allowing an extension of time to bring a claim to the Tribunal of this length is not common, but it is a good reminder that the Employment Tribunal does have the discretion to extend the time requirements.

If you put in place any medical requirement relating to a job, you must be able to justify why it is a requirement. Review any requirements, checking that they really are necessary.
If you receive an ET1 (Tribunal claim form) which shows that the claim has been brought out of time you can write to the Employment Tribunal and request a preliminary hearing to address this. However, the deadline for responding to the claim still applies - seek our advice before proceeding.

Work of Sales Assistants and Warehouse Staff is of equal value

An equal pay claim can be made when an employee compares themself to an employee of the opposite sex who is doing like work (work that is the same); work that is rated as equivalent (rated on an analytical job evaluation scheme) or work of equal value (work that the employee argues is of equal value to the organisation).

In Thandi and others v Next Retail Ltd and Next Distribution Ltd [2023] female Sales Assistants argued that they were doing work of equal value to the male Warehouse staff. The Warehouse staff are paid more.

To assess the claim, the Employment Tribunal appointed independent consultants to assess the detail of the jobs and determine if they were of equal value. The consultants scored the jobs on 11 criteria – looking at the total score, and also the number of criteria where the women and men were assessed as being equal, or the same. On the basis of this assessment, the jobs were found to be of equal value.

The employees have successful argued that the jobs are of equal value, but the next stage is for the Tribunal to consider Next’s ‘material factor’ defence (i.e., the reason that Next will give for the difference in pay).

Actions:

If there are jobs in your organisation which are predominantly carried out by one sex take a moment to consider if there are any comparisons which could be made to jobs carried out by the other sex.

If you do identify such jobs and inequalities in pay, consider whether you could objectively justify this difference. Check with us to see if your arguments are sound.
The legislation and the assessment can be complex - if you are concerned about a potential ‘work of equal value’ claim, please contact us for advice

This month we have been…

…welcoming our newest Trainee and Newly Qualified solicitor!

Clara Hunt joins us for 6 months as part of her training to be a solicitor, whilst Rebecca (Becky) Walters joins us permanently as an Associate having completed her training with Clarion.

Clara has just completed her Legal Practice Course in Leeds, and we are very pleased to welcome Becky back after loaning her skills to our Corporate and IP teams over the last 12 months. Becky is a keen snowboarder while Clara enjoys netball and the gym in her spare time.

Disclaimer: Anything posted in this blog is for general information only and is not intended to provide legal advice on any general or specific matter.

Webinar: Building Safety Act Update

Clarion — 18/05/2023

Since the Building Safety Act received Royal Assent in April 2022, new legislation has been rolled out and continues to be rolled out over the next 12-18 months, to improve the safety and quality of residential buildings in the UK.

To help you understand and prepare for the biggest set of building regulation changes the industry has seen in decades we’ll be providing regular updates through blogs, seminars and webinars.

In this webinar, we will discuss the progress made so far, the challenges faced, and the plans for the implementation of the Building Safety Act 2022 and its far-reaching implications on the construction industry. We will also have a Q&A session to answer any questions you may have.

Speakers

Phil Morrison - Partner, Clarion

Phil is head of Clarion’s Construction team and is recognised for his expertise in dealing with claim relating to fire stopping and the defective cladding on buildings that have arisen since the Grenfell tragedy.

Sophie Morley - Partner, Clarion

Sophie is head of Clarion’s Property Litigation team and has extensive experience managing residential and commercial property portfolios and advising on issues arising on development sites.

Webinar schedule

11.00am - Welcome and intro

11.05am - Building Safety Act Update

11.45am - Q&A

12:00pm - End of webinar

Registration details

To register for this seminar, please click here.

Can’t make the date? Don’t worry, register anyway and we’ll send you a copy of the recording.

Get Data Protection Ready

Clarion — 07/09/2017

Get Data Protection Ready

If your business holds information relating to individuals, whether they be employees, customers, suppliers or recipients of marketing material, it will be subject to the current data protection legislation and, from 25 May 2018, the General Data Protection Regulation 2016 (GDPR). GDPR requires each business to adopt an appropriate and proportionate response to compliance and penalties for failure to comply, including fines, are significant. If GDPR isnt already on your businesss agenda, now is the time to act.The GDPR extends current requirements set out in the Data Protection Act 1998 and places new obligations on businesses.

These include, amongst others:

1. more stringent requirements around consent, including the need to obtain express consent;
2. the right to be forgotten;
3. adopting a proportionate approach via privacy by design and privacy impact assessments;
4. a modified subject access request procedure that favours the individual;
5. new, stricter requirements to notify the ICO, affected data subjects and, if the breach has been committed by a data processor, the relevant data controller, of a breach of GPDR; and
6. expanded territorial reach a non-EU company could be subject to the same sanctions as EU companies.

What could go wrong?

Under the current legislation, the ICO may levy fines of up to £500,000. Under GDPR, those fines will increase to a maximum of 20 million Euros or 4% or group worldwide turnover (whichever is greater). Breaches that are deemed by the ICO to be less serious could incur fines of up to 10 million Euros or 2% of group worldwide turnover. Reputational impact could also be significant.

How we can help

Addressing compliance with GDPR can seem daunting, but it doesnt need to be. Although it potentially requires a significant level of time and resource dedicated to it by the business, our aim is to break down GDPR into bite size chunks on a risk analysis basis.We will work with you to locate any areas of risk within your business around data protection and GDPR compliance, helping you map the data you currently process, determine whether or not such processing is GDPR compliant and take the steps needed to avoid non-compliance. Following the initial assessment, we will help you decide which issues should be dealt with as a priority, which are easy wins that can be swept up easily and cost efficiently in the early stages, and which could form part of a rolling programme, ensuring your day to day business can carry on as normal. Were also here to help postimplementation of GDPR, making sure your policies, procedures and documents are up to date and ensuring you have the tools necessary to assess ongoing compliance.

Next steps...

If you would like more information about GDPR and the ways in which we can help, we would be happy to meet with you or to have a call to discuss your requirements in more detail. If you choose to work with us, we will put together a detailed price proposal to help you decide which areas of our compliance programme you would like to pursue. For more information, please contact Matthew Hattersley or Florence Maxwell.

Effective credit control series: the importance of knowing your customer

Clarion — 24/01/2023

2023 is set to be another challenging year with many businesses battening down the hatches and conserving cash for better times ahead.

Getting paid on time for the services you provide can mean the difference between profit and loss and during a recession poor cashflow management can stop your business from growing. Many of your clients will also be facing difficult financial positions and they may try to delay payments.

Reluctant payers aren’t something you want to be dealing with and can lead to many difficult conversations with your clients. With this in mind, I’ve put together a series of blogs to help improve your credit control. The series will look at the importance of knowing your customer, how to reduce your debtor days and will cover the most frequently asked questions about effective credit control.

In part 1 of the series, I’ll highlight the importance of knowing your customer, including full contact information and company details.

The importance of knowing your customer

Everyone hopes that they never have to use an external resource to deal with reluctant payers, and something our Debt Recovery team hears often is “I have never had a problem before, so I didn’t think I needed a lot of information on my customer”. It only takes one bad customer for our clients to realise that it is better to be over prepared than be lacking in readily available information.

To have the best chance of recovery it is always advisable to have a catalogue of contact information and details for your customers. Even if you don’t expect to have a long relationship with a new customer, it is worth dotting all the I's and crossing all the T's at the outset to avoid any potential issues if things don’t run smoothly during your working partnership.

What customer information should you collect at the start of a trading relationship?

It may sound obvious, but it’s so important you know exactly who you are dealing with. Getting the full names of the proprietors who own a business is a must. Just nicknames or shortened names can cause problems if you ever have to take the step of issuing legal action against them. An up-to-date postal address is also essential. If you cannot find them, you cannot demand payment. Telephone numbers and email addresses are also useful when trying to engage with the relevant person.

The same applies to business information. Make sure you have recorded the company number, as this is something that identifies the business as a legal entity. Not all businesses use their full name in correspondence, or they may use abbreviations, and this can lead to confusion with similarly named businesses. A unique company number identifies the business even if the business name gets changed. Company Director details are also useful if you need to go above your usual contact for a response.

Do you know if your customer is credible?

Now you know who you are dealing with, you might want to check if your customer is credible and worthy of credit, or whether they should be treated as a pro-forma customer.

The best place to start is obtaining credit references, trade references, and checking a business’s financial information. Simple account statements can be found on the Companies House website. This will give you an overview of how the business is performing. Creditsafe, Experian, Red Flag and other similar companies can provide risk analysis for any business, which is useful in helping you decide what level of credit should be offered. There is nothing wrong with starting low, and then increasing the amount as the trust level builds. Where the contract is large, do not feel embarrassed to ask for a sales forecast.

Keeping a record of customer bank details can be useful, even if they pay by card for your goods/services.

All contact details and credit checks should be reviewed at least every 12 months to ensure they are current. Out-of-date information can be as bad as not having recorded it in the first place.

Do you have customer security?

Personal guarantees are a useful tool and can be incorporated into your terms/account opening form. Having a Guarantee gives another avenue for recovery even if your customer ceases to trade or becomes insolvent. A Company Director or Company Secretary can be liable to perform the obligations of the business which means that they become personally liable for the debts of the business should it fail to meet its obligations. The Guarantee must be very clear as to its purpose and must be signed and dated separately from any other part of the document. The signatory must also be made aware of the ramifications of signing the agreement and be given the opportunity to take their own legal advice before doing so.

Do you have clearly signed and dated documents?

Clear terms of business should not be underestimated. It can help you and your customer to understand exactly what is expected of each other and concisely sets out any consequences of either party failing to fulfil their obligations. Ambiguous clauses or woolly descriptions can be misleading and end with neither party being exactly sure what is and isn’t covered. Take “interpretation” out of the equation and use easily understood language and clear points. Our Commercial team can help make sure your contracts are correct by creating bespoke documentation to meet the requirements of your deal.

Making sure that all agreements are signed and dated (and witnessed where necessary) is important. It shows that both parties have read, understood, and agreed to the contents of the document. An unsigned and undated document could be used to argue that the contents of the document were never agreed upon. Both you and your customer should keep copies of all signed documents. If any changes are made, then the amended document should be signed and dated again. The person signing the documents should be in a senior position or one that allows them to bind the business in the agreement. It wouldn’t be unreasonable to assume that a junior secretary, for example, would be in such a position, and it would be reasonable to request someone in a more senior position to sign on behalf of the business.

As highlighted in this blog, knowing your customer is important for effective credit control. It helps make sure you have all the information you need to collect payment and if needed take action against a reluctant payer.

If you have any questions about the points covered in this blog, please get in touch with our Debt Recovery team who will be happy to have a no-obligation discussion with you.

The next blog in the effective credit control series will give tips on how to reduce your debtor days.

Disclaimer: Anything posted in this blog is for general information only and is not intended to provide legal advice on any general or specific matter.

Effective credit control series: top FAQs on credit control

Clarion — 07/02/2023

In the third and final part of our ‘effective credit control’ series, I’ve put together the most frequently asked questions our Debt Recovery team are asked about credit control and the challenges they face.

Q – If my customer refused to sign an agreement, but we sent goods to them when they placed an order, can we still take action against them?

A - If your customer has accepted the goods from you and you can show that they were made aware of your terms and subsequently made an order, it is inferred that they have accepted your terms. The fact that they were aware of the terms and still made the order is a basis for accepting the terms.

Q - It is an old account, and we cannot find the original paperwork, but the debtor has been dealing with us for years. Can we rely on past actions to show a relationship?

A – If you can show a historic and established previous track record of dealings with a customer then this may be relied upon to demonstrate an acceptance of terms. It also helps if payment terms are included on all invoices and statements.

Q – My customer has changed names since the invoices were issued to them, do I have to re-issue the invoices under the new name and wait for the 30 days terms to expire before I can chase payment?

A – If the company has merely changed its name, then no you do not have to re-issue any overdue invoices from before the name change. The new company was merely formerly trading as the old company name and is still the same legal entity. You should of course amend your records as soon as any changes are known and send new terms.

Q- The Directors of my customer have told me they are closing the company and have asked me to invoice their new company for any outstanding invoices due from the old company. Should I do this?

A – The issue here is that the new company will not have the benefit of the goods or services provided to the old company. If you demand payment from the new company, they can quite rightly state that they have not received the goods or services provided. Always be wary if you are asked to change any customer details on your invoices.

Q – Can I add LPC to the account balance if the payment date has passed?

A – Yes. You are entitled to add LPC for each invoice, however, this may not be practical if each invoice is for a small amount and you may decide the charge on the total due in any one month, or just on the full amount of the account.

Q – The debt is quite old; how long do I have to demand payment?

A – The limitation period for the collection of overdue debt is 6 years. That time runs from either the date of the invoice or the last date an admission or payment is received. For example, if your debt is from 2000 but the debtor stopped making agreed instalment payments in 2020 you can still take action to recover the balance due.

Q – My customer has a query with one small invoice but is refusing to pay the balance of the account until the issue is resolved. Do I have to wait for payment?

A – No, a customer cannot withhold payment on an unrelated invoice. In this instance, they should pay the undisputed balance and then work with you to resolve their issue.

Q – My customer has built up historic debt and is still ordering from us. Can I only chase them for overdue invoices?

A – When an account becomes overdue, it can be assumed that as some invoices are overdue on the account, there is little possibility of obtaining current invoices when they fall due. You can demand the full amount of the account. You may of course decide to accept payment of the overdue invoices only from the debtor should they get in touch. Just be aware that you may be in the same position a month or so further down the line.

Q – One of my customers has a history of consistent late payments. Can I change their terms of business?

A – How you set up your terms is your prerogative. You can change payment terms at any time, however, this must be communicated to your customer before the change is made. This gives them time to find another supplier if they do not agree to the change and ensures that they do not place an order thinking they are doing so under their original terms.

If you have any questions not covered in this blog, our Debt Recovery team are always happy to have a no-obligation conversation with your credit control or finance teams, so please just get in touch if this is of interest.

If you missed the previous blogs in the series, you can read part 1 – the importance of knowing your customer here, and part 2 – reducing our debtor days here.

Disclaimer: Anything posted in this blog is for general information only and is not intended to provide legal advice on any general or specific matter.

Is automation the future? Cimlogic and Holmesterne Foods discuss their experience with us.

Clarion — 22/11/2018

A new report outlines how technological changes could impact the future of the workplace in the UK.

Recently released by the Trades Union Congress (TUC) - a federation of trade unions in England and Wales – the report, A future that works for working people, outlines how technology could be a positive force in the ever-changing world of work.

The impact of technology in the workplace

Advances in technology are already changing the world of work to an unprecedented degree – and it’s a trend that’s only continuing to grow. It’s also a trend that will likely affect people at all stages of their working lives, from those just starting out to workers heading towards retirement.

The main technological changes that are expected to have the greatest impact in the workplace are artificial intelligence (AI) and, particularly, automation.

Automation leads the way

From algorithms to robotics, technologies that automate work could totally transform jobs. Some worry that job automation will lead to significant unemployment – Mark Carney, Governor of the Bank of England, recently suggested job losses caused by technology changes could recreate the conditions seen after the industrial revolutions of the 18th and 19th centuries.

However, others argue that it will generate new jobs, either replacing those lost without significantly impacting employment rates, or by changing the mix of skills needed to perform any given role.

According to the TUC’s report, “based on long-term and recent history, we believe that the introduction of new technology has the potential to deliver good new jobs. The Made Smarter review of industrial digitalisation, for example, estimated that industrial digitalisation could create a net gain of 175,000 jobs over 10 years.”

Whatever its impact, there seems to be no denying that automation will become a reality. Industries most likely to be affected by automation are transportation, manufacturing, and construction jobs, which are expected to be 40–50% automated by the mid-2030s; jobs in sectors like human health, social work, and education are less exposed. Those in more routine jobs, young people, and workers with lower level educational qualifications are likely to be most at risk of losing their jobs to automation.

Ultimately, however, only 5 percent of jobs can be entirely automated.

Increasingly, though, jobs at every level of skill and responsibility will face some degree of automation, which means the way we all work will shift as we hand over some parts of our roles to machines.

Benefits of automation in the workplace

Automation and artificial intelligence in the workplace will create new occupations that do not exist today, much as technologies of the past have done. They will also dramatically change the way we do jobs – as machines and artificial intelligence start to take over some of what we do. This could help improve work - automated support to do repetitive or time-consuming tasks would leave workers more time to do other, more rewarding work.

Other benefits of automation in the workplace were identified by workers polled in the TUC report. 68% percent of respondents thought technological advances could lead to fewer dangerous jobs, more creative work (68%) and more enjoyable work (66%). Two-thirds (665) said automation could result in more use of interpersonal skills.

Funnily enough, we also need to ensure we introduce automation quickly enough. The UK’s ageing population means that, rather than automation replacing workers, there may not actually be enough workers to ensure the type of economic growth that’s wanted.

For the economy to grow, industries need to develop and adopt automation appropriately, leverage the opportunities it offers and ensure workers are upskilled accordingly, to help them re-adjust to new technologies.

Manufacturing and the impact of automation

This is something we’re seeing a lot within the manufacturing sector. It faces some interesting challenges around skills shortages and productivity, but also opportunity in relation to innovation, automation and collaboration.

Yorkshire-based food company Holmesterne Foods has automated its food production lines and for, Shaun Bedford, Head of Operations, this has brought a lot of advantages.

The company was able to cut down their use of casual staff, which they had become too reliant on and were too expensive, and instead, as Shaun explains, “secured the workload for our full-timers. They were very clearly happy with this, as the morale changed overnight, knowing that they had a long-term future at Holmesterne Foods.”

Shaun is now working on the next phase of automation and improvements across the business “as, he says, “when it’s done in small constructive steps, it’s viewed as a benefit and not a way of getting people out of the door.”

Making workers’ lives better

The automation at Holmesterne Foods has also meant that the firm can “further train and develop our people’s skills. The improvements we’ve made have allowed us to take people in groups off the factory floor and train them about food industry regulation requirements. We’re therefore upskilling as we go.”

“We, and the staff, are seeing the benefits of this day-to-day, due to the efficiencies and cost reductions we’ve been able to take advantage of.”

Ultimately, though, automation has enabled Shaun to build a better place for his employees to work.

As he says, it “is not always about money to the bottom line but it is all about making the working environment a better and safer place and if you do get some financial saving then that’s great too.”

Embracing the future

Cimlogic is another Yorkshire-based firm embracing automation as the future. They do this by helping manufacturing businesses improve their productivity through the use of physical and digital technologies – such as automation.

For Cimlogic’s CEO, Mike Hodge, automation is not just a solution to a problem, it’s a mentality: “The mindset required to embrace automation is the cornerstone of driving productivity forward in the UK. Those which invest will see the biggest prize and will be able to react quicker to a market which is demanding more and more consumer choice.”

Cimlogic are experts at using the ‘best of the best’ technology, to build rapid and robust solutions for their clients, and Mike Hodge sees automation as key to this. “As well as bringing quick returns in terms of consistent quality, increased output and reduced costs, automation creates a platform to provide real time data in abundance.”

And it’s that data, Mike argues, that can make an even greater difference to a business that may have already automated its production and perceive itself to be at the forefront of technological innovation.

“If you have automated your production, then surely you are already cutting edge?” asks Mike. “Well, this is certainly true, but you may only be realising 65% of the lines’ potential, and using data can help unlock the remaining 35%. This can be done in terms of understanding where your losses are, how lines perform at certain times and on certain products, for example.”

“Manufacturing operations of the future are very much based on automating, driving behaviour, analysing performance and then tweaking the way you run your operations as a result,” says Mike.

“This, in itself, calls for differing skill sets within the sector, but,” –as Holmesterne Foods has also discovered – “pleasingly, means better quality jobs as a result, for those wishing to upskill.”

If you are interested in attending any of our events on this subject please email lauren.perry@clarionsolicitors.com.

Energy in manufacturing – using smart energy to optimise your usage

Clarion — 15/09/2025

When it comes to efficiency, optimisation is essential. It’s a vital element of every area of your business and operations, including energy. But optimising energy, both in terms of usage and procurement, isn’t just about making savings. It does play a key role in managing rising operational costs, but it also helps to meet emissions and sustainability targets, as well as improving the competitive nature of your business.

For UK manufacturers, rising input costs and regulatory pressure means that optimising energy (including electricity, gas, heat or other input fuels) use is more important than ever. Manufacturers across the country are actively investing in digital technologies and smart energy systems to help and improve efficiency. But the reality of this is that many of those that have invested in the tech, may not be making full use of the systems they’ve put in place for various reasons including limitations of inter-operability between technologies, equipment and data collection and analytic devices.

What is smart energy, and why does it matter?

You may have heard the term “smart energy” from time to time, but it’s not always immediately obvious as to what it entails. Essentially, smart energy refers to integrating and using digital technologies to monitor, control, and optimise energy consumption, either in real-time or near-real-time. It’s a highly effective method of improving energy efficiency within a building, certain technologies, and equipment and manufacturing processes, which can prove to be exceptionally valuable for manufacturers in particular. It includes the use of:

Sensors and IoT devices.
AI/machine learning.
Automated control systems.
Energy dashboards, energy data collection and analytics platforms.
Predictive maintenance and optimisation tools.

Today, energy and operating costs are rising, and there is increased scrutiny of Scope 2 emissions in the manufacturing space. There is also more pressure to reduce downtime, and in turn reduce energy waste and system inefficiencies. Smart energy systems help to address these challenges, whilst also providing opportunities to participate in flexibility services such as demand side response (DSR) or demand flexibility services (DFS).

Implementing these systems can help to reduce energy bills whilst boosting operational efficiency and also help to reinforce ESG performance to support net zero targets, comply with frameworks such as ISO 50001 (i.e. a voluntary, international standard which provides a framework for organisations of any size to establish, implement, maintain, and improve its energy management system thereby reducing consumption and costs) and comply with current UK emissions reporting requirements (including SECR) and future sustainability disclosure requirements, including the envisaged UK Sustainability Reporting Standards (UK SRS) (currently under consultation).

What are the use cases of smart energy systems for manufacturers?

Whilst the above gives a very brief and general overview of smart energy systems, understanding the intricacies of the technology and its use cases opens up a much vaster and more detailed list of potential benefits. Each use case provides tangible benefits and results for manufacturers. To help you develop a deeper understanding of some of the use cases of smart energy systems, here are some detailed insights of where they can make a difference for those that implement them:

Sub-metering and granular monitoring

Tracking is an incredibly powerful (and valuable) asset for manufacturing processes and operations. For energy, smart energy tech enables you to keep an eye on energy use in a more granular fashion, such as by process, by machine, or by department for example. This granular view can help you to identify any potential “phantom” energy losses, such as situations where machines might be running unnecessarily. The information it provides can also be used to support investment decisions, maybe in cases where you need to decide on whether machinery needs to be replaced vs repaired.

One important thing to note is that when looking for sub-metering suppliers or data access platform providers, you’ll need to carefully review your contracts around data access, alignment with your utility supply or even utility broker contracts to ensure provision of required date for volume/ tolerance control and forecasting as well as liabilities and potential compensation for the provider’s failure to comply with service levels or other KPIs, so that you don’t fall victim to any potential problems after integration.

AI-powered energy management systems

Artificial Intelligence (AI) is transforming the way we live and work, and as a sector, manufacturing is no stranger to its potential. Whilst its capabilities have already transformed a number of manufacturing processes, it also plays a crucial role in smart energy technology. For example, tech with machine learning algorithms allows for demand forecasting, automated responses to tariff changes, and suggestions for load shifts or adjustments. This becomes incredibly useful in cases where you may want to reduce energy load at expensive grid times with automated peak-shaving.

However, from a legal standpoint, it’s essential to identify where adoption could trigger compliance issues. Automated decision-making needs to be managed carefully so as not to cause issues in areas such as data protection, volume or forecasting obligations under your utility supply contracts or under more sophisticated flexibility services you may provide.

Automation of lighting, HVAC, compressed air systems and more

As you might already know, these systems are likely responsible for a pretty significant percentage of your energy use, particularly if you have large warehouses and production environments. But much like the situations we described in the two previous use cases, you can use smart energy technology to automate these systems and benefit from better-optimised energy usage. It also helps to provide more predictive maintenance scheduling. These benefits combined can give you some quick wins with reasonably short return on investment periods.

Demand Side Response (DSR) / Demand Flexibility Service (DFS) and participation in flexibility markets

Alongside the cost saving capabilities of smart energy tech, manufacturers can also benefit from receiving payments from optimising their energy by reducing or shifting energy use at key times. To achieve this, you’ll need technology that can respond to grid signals, which will also require contracts with aggregators or energy suppliers. Such agreements are often complex and it’s essential that you fully understand key areas of risk as well as performance obligations and potential penalties. Making the most of DSR or DFS contracts requires careful balancing of the commercial benefits against operational risk.

What should you consider before investing in smart energy?

Successfully adopting smart energy and energy optimisation technologies means asking yourself some key questions beforehand. It’s about preparation and understanding so that you can reap the most benefits from it:

Digital infrastructure readiness – Are your facilities connected enough for real-time monitoring? Do you have any legacy machines that may not be compatible with IoT or cloud-based tools?
Internal resources and change management – How will you approach upskilling your workforce for energy optimisation? Will you need to introduce new internal roles? Should you consider bringing in any external consultants or tech partners?
Procurement and legal protections – How will you address areas where common issues can occur in smart energy projects:
- Intellectual property and data protection - who owns usage data and who can access it?
- Service level agreements, particularly around uptime and responsiveness
- Who is liable for underperformance or incorrect optimisation?
- How will integration risks with existing systems be managed?
- How will you negotiate contracts with technology vendors, energy consultants, brokers, platforms, suppliers and flexibility market aggregators or network/system operators?

These are just a handful of questions, but answering them is crucial to preparation and planning. Once you understand your position, you’re much more likely to tip the scales in favour of successful adoption, rather than subjecting yourself to the potential fallout of new risks and penalties.

Smart energy is more than just technology

It’s strategy. With the right approach, you can take more control over your costs and commercial performance, as well as building a better foundation for asset optimisation, emissions and sustainability management and performance. But proper strategic planning and execution is critical. That’s where we can help. We advise manufacturers and asset owners across the UK, supporting them with everything from utility supply, technology and IT contracts to DSR and DFS schemes, to contractual arrangements for digital optimisation and risk planning. To find out more about how we can support you, don’t hesitate to get in touch with our expert Energy and Infrastructure lawyers.

What’s next for Companies House identity verification?

Clarion — 27/03/2026

Following the introduction of the mandatory identity verification regime on 18 November 2025, Companies House has provided an update on its implementation and next steps.

Companies House has confirmed that a key focus for the coming year is completing identity verification for all individuals who are required to do so. It reported that more than 2.5 million people have already been issued personal codes following successful verification and that it remains on track to deliver this phase of the regime by the end of the 12-month transition period. Companies House has also indicated that during 2026 it intends to begin compliance activity in respect of individuals who have failed to verify their identity, applying what it describes as a fair and proportionate approach to enforcement.

However, the previously expected spring 2026 implementation has been delayed: compulsory identity verification for anyone filing documents, and the requirement for third-party agents who file information to be registered as an ACSP, will now take effect no earlier than November 2026.

Finally, Companies House confirmed another increase to its fees last month, stating that this will support its ongoing work to build a more transparent and trustworthy corporate environment for consumers and legitimate businesses.

For further information on the identity verification regime, please read our guide here. Businesses and individuals should ensure that any remaining identity verification requirements are completed as soon as possible.

If you have any questions about identity verification or any other aspect of the ECCTA reforms, please don’t hesitate to get in touch with our expert advisers.

Disclaimer: Anything posted in this blog is for general information only and is not intended to provide legal advice on any general or specific matter.

Webinar: Employment law update 2025

Clarion — 15/10/2025

This session is a must watch.

Significant changes to employment law (proposed in the Employment Rights Bill) are expected to be approved shortly. A roadmap has been published to manage implementation.

These changes will impact all businesses, managers and People & Culture teams.

Legal experts Deborah Warren and Suzanne Treen will take you through the updated position on the key changes, share thoughts and insights, and provide guidance on how you can best prepare in the coming weeks and months.

In this session, Deborah and Suzanne will cover:

developments in respect of the extensive legislative changes proposed by the government;
key case law developments over the past 12 months;
what’s on the horizon; and
your learning points and actions.

Your speakers

Deborah Warren, Partner, Employment and Business Immigration team

Deborah has substantial expertise advising on and managing multifaceted reorganisation, restructure and redundancy projects, involving both individual and collective consultation. Deborah is a skilled litigator dealing with complex litigation, including claims involving numerous strands of discrimination, multiple respondents, insolvent respondents, and collective consultation (brought by trade unions).

Suzanne Treen, Legal Director, Employment and Business Immigration team

Suzanne has substantial experience and expertise on all aspects of employment law. Suzanne advises clients on business immigration assisting clients to make sponsor licence applications, comply with their sponsor obligations, as well as visa applications for migrant workers under the points-based system and visitor route. Suzanne advises international clients on routes into the UK and has assisted a number of employers who have fallen foul of the immigration rules on corporate transactions.

Registration

Tuesday 21 October 2025, 10am- 10.45am

After registering, you will receive a confirmation email containing information about joining the webinar.

Enterprise Management Incentives: wider access from April 2026

Clarion — 27/03/2026

Recruitment and talent retention are key issues for businesses of all sizes and sectors. Start-ups and scale-ups face the additional challenge of incentivising key employees without significant cash resources. Enterprise Management Incentives (or “EMI”) are designed to address these issues, by enabling small and medium-sized companies to reward employees with an equity stake in a tax-efficient and flexible manner.

However, the current rules are restrictive, excluding larger companies or meaning that companies can outgrow the scheme. As announced in the Autumn 2025 Budget, significant changes to the eligibility criteria take effect from April 2026, making EMI an option for a far larger number of companies.

EMI: how do they work?

EMI are options over a company’s shares, which can be granted to certain employees.

EMI are notable for their flexibility. Companies can grant options to a selected few individuals (often key members of the management team) or to a larger number of employees.

The company may elect for options to become exercisable after a specified period, or when certain (for example, performance) criteria are met, or only on an exit. Options can be granted over shares in an existing class of the company’s ordinary share capital, or over a newly created class with (as is common) reduced rights to voting and dividends. For larger companies wishing to differentiate between groups of employees, EMI could be granted over different classes of share, provided each class complies with the rules.

The tax benefits

No tax is payable on the grant of an EMI option.

If the strike price is set at an amount at least equal to the market value of the shares when the options are granted, no income tax or National Insurance Contributions are payable on exercise. The market value of the shares can be agreed with HMRC before options are granted, providing certainty that no tax will arise.

On a sale of the shares, the employee is subject to capital gains tax (at 24%) and, if the combined period for which they have held their option and the shares is at least two years, they may benefit from business asset disposal relief, reducing the rate to 14% (18% from April 2026).

Restrictions on EMI

Other than certain excluded sectors (for example financial activities and property development), most trading companies (or holding companies of trading groups) can grant EMI.

They can be granted to any employees who work at least 25 hours a week (or, if less, 75% of their working time) in the business, although employees with a “material interest” (more than 30% of the company’s share capital before the options are granted) are excluded.

However, they are subject to the following restrictions:

The company must have gross assets of less than £30 million.
The company must have less than 250 (full time equivalent) employees.
The total value of the company’s shares under EMI options must be less than £3 million.
No single employee can have options over more than £250,000 worth of shares.

Changes to the rules from April 2026

From 6 April 2026, the first three of these restrictions will be changed. Under the revised rules:

The limit on gross assets will increase to £120 million.
The limit on the number of employees will increase to 500.
The total value of shares under EMI option at any one time will increase to £6 million.

In addition to the above, from 6 April 2026, the maximum period in which options can be exercised increases to 15 years (set at 10 years before that date).

The value of the shares under an option held by a single employee will remain capped at £250,000, and although there will be some simplifications to reporting requirements, these do not take effect until April 2027.

Practical implications

The significant and unexpected increases to the limits on gross assets, total value of shares under option and the number of employees mean that, from April 2026, many companies that cannot currently grant EMI will be able to do so.

Larger companies considering whether to take advantage of EMI should be aware, however, that there are number of potential pitfalls with EMI, and “off-the-peg” scheme rules may not be suitable in all circumstances. Proper advice and careful drafting of bespoke rules should ensure, however, that EMI are tailored to the issuing company’s requirements and achieve their commercial aims.

We can help with implementing new EMI schemes and advise on existing ones, for example dealing with leavers, disqualifying events and the cancellation, variation and issue of new options.

If you would like to discuss any of the information provided in this article, please do not hesitate to contact a member of our Tax team who would be more than happy to assist.

Disclaimer: Anything posted in this blog is for general information only and is not intended to provide legal advice on any general or specific matter.

Employment Law Bulletin - November 2023

Clarion — 27/11/2023

Welcome to our November bulletin - we hope you’re surviving the dark days and storms that this month seems to have brought with it so far!

If you thought last month’s Halloween themed newsletter was ‘scary’, this month we’ve got significant updates for you on a topic which may strike yet more fear amongst many of you; holiday pay.

There’s been a few key legal updates that we wanted to make you aware of, some of which are positive and bring some much-needed clarity, as well as some key case law decisions in relation to discrimination and harassment which we wanted to share with you.

Upcoming webinar: Managing Sickness Absence, 23 November, 11am

It’s that winter bug season again when employers face increased challenges of managing their business whilst supporting employees with health problems to stay in or return to work!

In the current economic climate and when trying to manage higher client expectations, it’s more important than ever that employers can manage their workforce and tackle absences well. Taking the correct steps from an early stage will help you to meet your commercial objectives whilst also reducing the disruption to the business and legal risks.

During this webinar, we will provide practical advice on how to tackle both short and long-term sickness absence. We will also provide helpful guidance on how to manage and reduce the risks of disability discrimination claims when dealing with absence.

Click here for more information and to register.

A spotlight on DSARs

As a special feature this month, one of our data protection and privacy specialists, Florence Maxwell, has prepared an update focussing on dealing with data subject access requests (DSARs) from an HR perspective. This blog is available on our website.

Change on the horizon for holiday pay, TUPE & working time

The government finally published its long-awaited response to the consultations which took place earlier this year on reforms to retained EU employment law and calculating annual leave entitlement for part-year and irregular hours workers.

Draft regulations addressing the following changes are intended to come into force on 1 January 2024 (if approved) but with some provisions having effect on or after 1 April 2024.

The key outcomes of the response are as follows;

There will be no single ‘pot’ of holiday entitlement as was suggested. The 4 weeks leave prescribed under EU law, and the 1.6 additional weeks implemented by domestic law, will stay separate and distinct;
Employers will be permitted to pay rolled-up holiday pay for irregular hours workers and part-year workers.
Employers will be able to calculate accrual of holiday entitlement at 12.07% of hours worked in a pay period for irregular hour workers and part-year workers;
Record keeping requirements around working time will be reduced such that employers are no longer required to keep records of daily working time if they can otherwise still prove compliance.
The regulations will also clarify what must be included in ‘normal’ remuneration for the purposes of calculating holiday pay.
Rights to carry over holidays in certain circumstances (such as sickness absence and maternity) will be re-stated.
There will no longer be a need to elect employee representatives under TUPE where business has fewer than 50 employees or the transfer affects fewer than 10 employees.

The response and reforms bring some much needed clarity to holiday pay, and the much discussed topic of retained EU laws following Brexit.

The response does also note that the government is considering ‘more fundamental reforms to the rate of holiday pay’ ,suggesting there is more to come and that as ever, it remains a ‘watch this space’ topic (as evidenced by the case below)!

Actions:

Review your holiday pay processes and policies in light of the changes due to come into force. Please contact us for any advice or support.

More on holiday pay with a decision of the Supreme Court

Prior to the above response being published, an important ruling was given by the Supreme Court in the case of Chief Constable of the Police Service of Northern Ireland v Agnew [2023] which could potentially increase employer liability for historic underpaid holiday pay.

In this case employees had not been paid the correct holiday pay, because their payment when taking annual leave had only been basic pay and had not included other elements such as overtime. The case concerned the period for which the employees could claim. The Supreme Court ruled in favour of the employees, allowing use of the ‘series extension’ and holding that whether there is a series is a question of fact, and that a relevant series is not necessarily broken by a gap of 3 months between deductions or by a lawful payment. This is contrary to the previous position, and represents a significant shift in how the value of holiday pay claims, and any back payments, should be calculated.

Actions:

Review how you calculate and pay holiday pay if you have not already done so.
When assessing the value of holiday pay underpayments, do not rely on a gap of 3 months or more, or a correct payment, to break the chain (of deductions). You should consider the full period of underpayments which could be claimed for.
If you are unsure how to calculate any potential liabilities, please contact us for assistance.

‘Deadnaming’ employee was discriminatory treatment

In the case of AB v Royal Borough of Kingston upon Thames [2023] the employee transitioned to a female. She gave her employer, a local authority, eight months’ notice that she intended to transition, but her employer failed to update certain employment records, therefore ‘deadnaming’ her (deadnaming is continuing to refer to someone by their pre-transition name). Despite her efforts, it took around two years post-transition to change her name on pension records, the staff directory and on her door pass.

The council accepted that they had not handled the employee’s transition well and that the council did not have up to date policies in place. The tribunal agreed that the council had failed to incorporate the Equality Act’s legal obligations into its policies and did not provide appropriate training to staff.

The employee was successful in arguing, amongst other behaviour, that her employer’s deadnaming, was less favourable treatment on the grounds of gender reassignment, and therefore she was successful in her claim of direct discrimination.

Actions:

If you have an employee who is transitioning, talk to them about what they want colleagues to be told about their transition and how they wish to be known after their transition.
Ensure that other employees are aware of how they should address the employee (e.g. specifying what pronouns should be used) in accordance with the employee’s wishes.
Make alterations to all relevant records promptly and sensitively.
Ensure that you have up-to-date policies in place supported by staff training on the topic of gender reassignment and in particular deadnaming.

Legislative Updates

New harassment legislation in force from October 2024

Keeping with the subject of harassment, the Worker Protection (Amendment of Equality Act 2010) Act 2023 was passed on 26 October 2023 and will come into force in a year’s time. Employers will be under a duty to take reasonable steps to prevent sexual harassment of their employees in the course of their employment, and a tribunal award may be increased by up to 25% for breach of this duty.

It's interesting to note that the draft Bill had proposed to introduce the mandatory requirement for employers to take “all” reasonable steps to prevent sexual harassment, but the “all” requirement has been removed from the Act.

In addition, the draft Bill had proposed to reintroduce employer liability for third party harassment. However, this has also been excluded from the Act because of concerns about impact on free speech and the regulatory burden on employers.

The European Human Rights Commission now intends to update its guidance on sexual harassment in the workplace in order to set out the steps that employers will be required to take in order to be compliant with the new legislation coming into force.

Actions:

Ensure that robust policies and training are in place to prevent and deal with incidents of sexual harassment in the workplace.
Consider this additional liability when assessing risks and value of potential harassment claims.

New law on Economic Crime to come in force from December 2023

The Economic Crime and Corporate Transparency Act 2023 also received royal assent on 26 October 2023. The Act is extensive and contains a raft of measures intended to improve transparency over corporate entities and tackle economic crime. The Act will be of interest to employers, as the measures include a new offence of ‘failure to prevent fraud’ plus reform of the identification doctrine.

The failure to prevent fraud offence:

imposes criminal liability on large organisations where an associated person commits a specified fraud offence intending to benefit the organisation;
it is a defence if the organisation can prove that at the time of the fraud it had reasonable fraud prevention procedures in place; and
the government has a duty to produce guidance setting out what would constitute fraud prevention measures, and the offence will not come into force until after this guidance has been published.

The reform of the identification doctrine:

expands the range of individuals whose actions mean the organisation itself is criminally liable however at this stage applies only to those economic crimes listed in the Act;
achieves this by extending the identification doctrine to senior managers acting within the actual or apparent scope of their authority; and
will come into force from 26 December 2023.

Actions:

Given the potential for criminal liability, organisations should act now to consider how the Act could affect them. A proactive approach to compliance will be needed to avoid both prosecutions and reputational damage.

Steps to consider:

ensure senior level awareness and understanding of the new offences, and senior level support for implementation of necessary measures;
involve legal and compliance teams and think about who else needs to be involved in your business;
review existing processes and procedures, undertake risk assessments, identify and implement new processes and procedures; and
introduce training thinking about areas of particular risk where additional training is needed, for example with senior managers.

Disclaimer: Anything posted in this blog is for general information only and is not intended to provide legal advice on any general or specific matter.

Building Safety Act 2022: Building liability orders

Clarion — 08/02/2023

The Building Safety Act 2022 (BSA) has introduced measures which aim to prevent contractors and developers from circumventing liability for development projects. It is not unusual for special purpose vehicles (SPV), subsidiary ‘shell’ companies or joint ventures (JV) to be used by house builders to develop sites whilst isolating risk and avoiding liability if the construction works are deemed defective post-completion of the project. Building Liability Orders introduced by the BSA aim to suppress this practice by extending liability in certain circumstances to extend to "associated" body corporates.

What are building liability orders?

The BSA allows the High Court at its discretion to make a building liability order if it considers it “just and equitable” to do so. These orders may extend "relevant liability” to “associated” entities such as sister and parent companies. The effect of building liability orders can be compared to that of parent company guarantees, with the substantial caveat being that the parent company is unable to negotiate the terms of a building liability order.

Relevant Liability under the relevant provisions of the BSA is defined as liability that is incurred:

Under the Defective Premises Act 1972.
Section 38 of the Building Act 1984.
As a result of a building safety risk.

Please review our blog on liability under the Defective Premises Act 1972 for details of liability thereunder.

Section 38 of the Building Act 1984 is a new cause of action which applies to any buildings for damage suffered as a result of a breach of Building Regulations. Although the date of the Act might suggest otherwise, section 38 of the Building Act 1984 was never previously brought into force but will be brought into force by the BSA.

In relation to the final criteria of Relevant Liability, a building safety risk is defined as “a risk to the safety of people in or about the building arising from the spread of fire or structural failure”.

Building liability orders: associated body corporate

Associated body corporates for the purpose of building liability orders are body corporates where:

one of them controls the other; or
a third body corporate controls both of them.

Although this appears to describe a simple sister and parent company relationship, the BSA extends what is meant by ‘control’ to body corporates (A) which have power indirectly to ensure that another body corporate (B) conducts its affairs in accordance with A’s wishes and to where A is entitled to acquire possession of shares or voting rights as well as actual possession. In doing so the BSA effectively pierces the corporate veil to prevent developers from escaping liability in relation to the relevant liabilities.

To satisfy the criteria of an associated body corporate, A must have been associated with B any time after the commencement of the works to which the relevant liability was incurred and before the building liability order is made. As such, the sale of projects or companies will not diminish the High Court’s entitlement to grant a building liability order against both sellers and purchasers. We are therefore likely to see greater weight given to due diligence in the purchase of companies which have been involved in the construction of projects which could incur the relevant liabilities.

Building liability orders: information orders

Any person making or intending to make an application for a building liability order under the BSA is also permitted to make an application for an information order. Granting the order will require a specified body corporate to give specified information relating to any associated body corporates. This will allow claimants to understand the corporate structures in place which could in turn assist them in obtaining a building liability order.

Building liability orders: just and equitable

The BSA does not provide any guidance on what will be categorised as “just and equitable and as with the case with the defence of a breach of Convention rights which applies to liability under the Defective Premises Act 1972, we will have to wait until this is applied by the Courts.

If you have any queries or would like to discuss any of the points raised in this blog, please contact Brandon Pizaro in our Real Estate team.

For more updates on the Building Safety Act 2022, please read our latest blogs:

Disclaimer: Anything posted in this blog is for general information only and is not intended to provide legal advice on any general or specific matter.

Despite coronavirus, Civil Courts push on with court hearings

Clarion — 02/04/2020

With the COVID-19 pandemic causing significant disruption across the globe and with the UK in shutdown, many in the legal sector anticipated adjournments of most court hearings, especially of major cases and lengthy or complex hearings. However, last week the courts in England and Wales have sent out a clear message that it is to be business as close to usual as is practicable and have insisted that trials will still go ahead.

Keeping manufacturers’ cash flowing

Clarion — 03/03/2021

Given the scale and importance of the manufacturing sector to the UK, it’s vital that those businesses that are part of it are as healthy as possible. With Brexit supply chain issues and higher costs still affecting the sector and the continuing uncertainty around COVID-19 and the economy, those that have optimised their business processes will be more resilient in the long-term. A big part of that is ensuring they are able to maintain a healthy cashflow.

Cashflow is the life blood of all businesses and the primary indicator of business health. It is generally acknowledged as the single most pressing concern for most small and medium-sized businesses, although even the largest organisations emphasise the importance of cashflow - most businesses can survive several periods of making a loss, but they can only run out of cash once.

A major factor in how much cashflow you have available are your DSOs (Days Sales Outstanding), which can have a huge impact on your business. It’s vital you understand how DSOs affect your daily operations and make sure you keep track to ensure they do not go too high.

Please click to read more and to try out our comparison DSO calculaor to see where you compare to others in the sector.

Webinar: The importance of employee engagement

Clarion — 18/01/2023

Employee engagement and experience has increasingly become a priority for business leaders and a nonnegotiable for candidates.

But what drives engagement and what benefits does it bring?

On Thursday 26 January at 11am our Head of People, Helen Saunders, will be sharing the initiatives we have put in place at Clarion to achieve high engagement, which has led to our external accolades and contributed to our growth. Helen will be joined on this webinar by Sarah Harrison, Legal Director in our Corporate team who will share some brief insights into how to retain your workforce through employee share incentive plans. This session will be chaired by Joanna Dodd, Legal Director in our Employment team.

Register your place here: https://us02web.zoom.us/webinar/register/WN_4jGVIgKRTdecLFDN8h8ZdA

Speakers:

The role of people and culture in disruptive businesses

Clarion — 28/05/2024

People are the heart of change. Without them, new ideas wouldn’t exist. No new processes, new products, or new services. That all sounds pretty obvious, but taking things further than the idea stage is a little more nuanced than just people’s involvement. Especially when it comes to disruptive ideas.

In most cases, disruption doesn’t “just happen”. It takes work. It needs conviction and belief. And the right perspectives are essential. Because disruption involves displacing the previous ways of doing things, working without a reference or benchmark to implement something new is not easy. But it’s a challenge that countless organisations have tackled head on.

A major part of their success is down to having a collective of people with the right approach and understanding. People who truly believe in the purpose of what they’re aiming to achieve. And people who set the strategy for, and form part of, a culture that inspires those involved.

The importance of culture

If someone was to ask what culture means to you, what would you say? There’s no right or wrong answer, because every business is different. The priorities of one organisation are rarely the same as another. That’s the basis of your brand’s identity. Something that plays a big part in making you who you are. But it’s more than that, too, and understanding it is essential.

Culture is about shared values. It’s the backbone of a collective purpose. It plays a tremendous role in demonstrating and displaying understanding, and it’s key to giving people a true sense of what an organisation really stands for. In terms of finding success in a business planning to disrupt their industry, that’s vital.

For disruption to succeed, the people behind it need to believe in the purpose. That means the people involved need a reason to believe in it. Sure, a big part of that is making sure that the plan itself is solid and convincing. But for long-term support from your people, you need to create a culture that helps to instil and reinforce that confidence.

Creating a culture that values disruption

At the Disruptors Conference 2023, Ian McAleese (Snowflake), Macs Dickinson (LHV), and Louise Wood (Leeds City Council) hosted a session where they shared their insights on people and teams for driving disruption. The session covered the importance of culture in both succeeding with disruptive practices, as well as ensuring that people within organisations are able to thrive with the business. Because the growth of individuals within organisations is just as important as the growth of the business itself.

Building teams.

One of the key focal points in the session was managing the organisational culture from the very beginning. From a hiring perspective, that means developing teams that work efficiently and effectively by ensuring that individuals are the right fit for both the brand and the culture. It also means prioritising a greater sense of collaboration to avoid the creation of micro-cultures. This can be a common issue, particularly in cases where teams are split or work remotely. But if forward momentum and growth are a priority, especially in terms of disruption, then the overall brand culture can be an incredibly powerful tool.

Making an impact.

Disruption involves making a difference. It’s about changing the way things are done. The value of that notion can have a significant impact on how people within your organisation view the process and the goals. Because people want to be able to make a difference with the work they do. They want to actively be a part of the value and purpose of the brand and the solution. Showing people how they can make a difference is highly effective at promoting a positive culture where disruption is involved.

Prioritising autonomy is also important. Self-governing working styles with the ability to make their own decisions can go a long way towards fostering a motivated and fulfilling environment. People gain improved trust and job satisfaction, and it helps to develop their skills and leadership abilities. In turn, autonomy inspires creative thinking and unique approaches to strategy. It’s that innovation that helps to drive the success of disruptive ideas.

Development and retention.

Aside from overcoming the hurdles of skill gaps, promoting and providing opportunities for the development of teams and individuals within an organisation is a highly effective strategy for enhancing a workforce. It strengthens teams, enabling businesses to complement their weaknesses with diverse skillsets, whilst also improving employee engagement and productivity. Making professional development a priority also helps to attract great job candidates, whilst simultaneously improving retention. It’s all a part of being able to show the people who choose to be a part of an organisation that they’re valued and that their futures and personal goals are important to the business.

Taking a proactive approach

Navigating a disruptive journey can often feel overwhelming. But it doesn’t have to be as complex as it seems. Prioritising forward thinking and effective planning goes a long way towards avoiding certain hurdles, particularly where people are concerned. It’s also important to think about alternative perspectives, which is where external support can be incredibly powerful.

Celebrating your successes along the way is essential, too. Especially when it comes to the people involved in those successes. Do you have a disruptive people management story to tell? If you do, then now is the perfect time to tell that story. The Yorkshire Excellence in HR Awards are taking place this year, and organisations are able to enter right up until the deadline on Friday the 19^th of July 2024. Categories include Rising Talent in HR, People Leader of the Year, Excellence in Learning & Development, Talent Acquisition Innovation, ESG Impact, and much more.

Visit the Yorkshire HR Awards website for more information and to submit your nominations.

If you’re looking for support with your current people management processes and challenges, please don’t hesitate to contact me - victoria.jackson@clarionsolicitors.com.

Disclaimer: Anything posted in this blog is for general information only and is not intended to provide legal advice on any general or specific matter.

Knowledge required for directors’ liability in intellectual property infringement proceedings

Clarion — 02/12/2024

Earlier this year, a decision (Lifestyle Equities CV and another v Ahmed and another [2024] UKSC 17 (15 May 2024)) from the Supreme Court found that where a company has been found liable for trade mark infringement, its company directors will only be personally liable as “accessories” to the infringement if they had knowledge of the facts which made the activities in question amount to trade mark infringement.

In the ruling, the Supreme Court confirmed that an accessory can be found liable for procuring the infringements, or on the basis of acting together with the company in a common design, if they possessed “knowledge of… the essential facts which make the act unlawful”. This is the case even where the underlying act (which in this case was trade mark infringement) is based on the concept of strict liability.

In this case, the directors had asserted that they were not aware of the claimant’s registered trade marks until receiving a letter of complaint. In addition, the Court accepted that “there was room for argument and honest difference of opinion about the extent of the similarity and whether it gave rise to a likelihood of confusion or otherwise resulted in infringement”. It will be interesting to see how the courts interpret the requirement for “knowledge of… the essential facts which make the act unlawful”.

A further point clarified that even where a director is found jointly liable with their company for infringement, the director is only required to account for any profits they made personally and not for the profits of the company. This is in contrast to the position where a claimant elects for an award of damages (rather than an account of profits) for which a director would be jointly liable if the Court had found them to be jointly liable for infringement.

The clarification given in this case will no doubt be well received by company directors, but not so much by trade mark owners as it appears to place an obstacle in the way of bringing a claim against a company director. The decision will also have further reach than proceedings based on trade mark infringement concerning company directors.

Get in touch with our Intellectual Property team if you’d like to discuss further.

Disclaimer: Anything posted in this blog is for general information only and is not intended to provide legal advice on any general or specific matter.

Effective credit control series: reducing your debtor days

Clarion — 24/01/2023

In the second part of our ‘effective credit control’ series, I’ve focused on how reducing your debtor days – essentially getting paid quicker – is important for effective credit control.

As mentioned in the previous blog – Effective credit control: the importance of knowing your customer - getting paid on time for the services you provide can mean the difference between profit and loss and during a recession poor cash flow management can stop your business from growing. Reducing your debtor days will improve your cash flow and as a result, you’ll be able to invest in other business opportunities that support your growth.

Taking steps to reduce your debtor days

You now have all your information, checks and terms in place and have started doing business with your new customer. Now it’s time to invoice them. Invoices should break down exactly what you are charging for, with as much detail as possible. Make sure your payment terms are clear and display a prominent “pay by” date. You can do this by using a larger font size, making text bold or using a contrasting colour to draw attention to the date. You don’t want your customer trying to claim they didn’t know when they had to pay! Setting out different payment options and contact details also removes the “I didn’t know how to pay” excuse.

However, let’s consider a situation where your payment date has passed, and the payment is not in your bank. This is when your credit control department kicks into action and emails, follow-up phone calls and final demands are next on the agenda.

Depending on the relationship you have with your customer, and they won’t all be the same, the way you approach their non-payment may differ. For those usually trustworthy customers you may use a more “friendly” approach – ask if there are any issues with the invoice, or whether there was a problem with the goods/services provided. If it is a cash flow issue with your customer, you may be more open to resolving the situation amicably and offer to accept an instalment arrangement, allow them to pay extra on future orders until the historic debt is paid, or other such resolutions.

When it’s time to take more stringent measures

If this approach doesn’t work, or if the customer does not respond to your messages, then it’s time to consider the next steps and start to introduce more stringent measures. This could include stopping all goods/services you provide them with until the arrears are cleared and threatening them with legal action if they continue to fail to pay. Pointing out the further potential costs for your customer if you are left with no alternative but to instruct an external company to take over the recovery process may encourage them to resolve the matter before such costs are added, or at least encourage them to open a dialogue with you.

Credit control conversations don’t always have to be confrontational, however, your customers must be aware of the consequences of failing to deal with due payments. It is money that is owed to you, and you should not be indirectly financing your customers’ businesses.

Do you need to take legal action?

If your customer does identify a dispute concerning the goods/services you have provided and gives a reason for non-payment of the invoice then all correspondence should be responded to clearly and with evidence where possible. If the matter cannot be resolved after you attempt to come to an agreement, then you must then decide whether to continue with further action and send it to an external company.

By removing yourself from the recovery process at this point, some space is created between yourself and your customer. If a customer has been ignoring you hoping that you will just go away, sometimes merely a demand on the letter headed paper of a Solicitors firm is enough to prompt payment, or at least instigate contact to resolve the situation.

I’d always advise clients to stay proactive and keep up to date on their customer’s financial situation and learn about their industry to see if they could be heading into any challenging times where payments might be delayed. This will allow you to speak to your customer ahead of any potential issues to make sure you are at the top of the payment list and take measures to ease their strain. Prevention is always better than trying to find a solution.

Credit control and reducing your debtor days is a vital part of any business. If done effectively it ensures a smooth cash flow supporting your business. If it is not prioritised, you could quickly find yourself with a ledger full of sales and an empty bank account! Our Debt Recovery team are always happy to provide a debt analysis of your business and include suggestions on how to reduce your debtor days and improve your cash flow.

If you missed the previous blog in the series you can read part 1 – the importance of knowing your customer here.

Disclaimer: Anything posted in this blog is for general information only and is not intended to provide legal advice on any general or specific matter.

In-person Event: Innovation North: Maximising R&D investment for competitive advantage

Clarion — 23/09/2024

Event Schedule

12:00 - 12:30 - Registration, networking and lunch

12:30 - 14:00 - Presentations and Q&A

Register your place here.

Agenda

The UK is facing unprecedented levels of change. So how do top-tier organisations respond to such market disruption?

Leading brands like Apple, VW, Samsung and Roche view change as an opportunity for growth through new product development. They consistently invest a significant portion of their profit in R&D, setting a benchmark for others to follow.

In R&D intensive businesses, it’s crucial to protect and commercialise intellectual property, maximise R&D tax relief and price new products to optimise margins. This seminar will address these challenges with practical strategies and solutions.

This seminar will feature presentations from leading industry professionals who will share their expertise and approaches to gain competitive advantage and growth in a changing market.

Register your place here.

Spaces for the seminar are limited, so we recommend you reserve your spot as soon as possible.

Speakers

James Brown, Senior Partner and Managing Director (UK), Simon-Kucher - James will discuss how to monetise innovation by understanding value and designing to price.

Stuart Griffin, Chief Executive Office, Consult Red - Stuart will explain how open source has evolved from volunteer-driven projects to strategic co-investment by companies, enabling greater innovation and business growth.

Mike Wilkinson, Senior Director - Major Pursuits UK&I, Schneider Electric - Mike will share Schneider Electric’s ‘Innovation at the Edge’ initiative, which drives the company’s success at the intersection of technology and emerging market solutions and services.

Stephanie Day, Tax Director and Edward Neale, R&D Associate Director, Forvis Mazars - Stephanie and Edward will provide share how to maximise competition through key strategies, including leveraging R&D tax credits and taking advantage of the Patent Box regime.

Sue Streatfield, Partner, Clarion - Sue will provide tips on how to harness intellectual property rights to maximise their value as assets and to create revenue streams.

How to adapt corporate space without falling foul of planning rules

Clarion — 26/05/2026

Many businesses assume that planning permission only applies when you put shovels in the ground and work affects the exterior of a building. But in reality, you may need planning permission even when there is no building work at all. That is why it is important to check whether planning rules apply to you before making any change to how you use your space.

When is planning permission required?

Planning permission is needed when ‘development’ takes place. Development is defined by statute as being operational (physical) works and a material change in the use of land, even where no construction work is proposed.

You should therefore think in two boxes: physical works and changes of use. First, operational works (for example, building, engineering or other physical works), and separately, a material change of use of land or premises. If what you are planning falls into either box, permission may be needed unless a specific exemption applies or works are so minor as to be inconsequential.

Is the existing use lawful: proving and protecting uses?

The only way to achieve 100% certainty that a current use is lawful if there is no planning permission is to obtain a Certificate of Lawfulness of Existing Use or Development. This requires an application to the local council (planning authority) with detailed and corroborated evidence that the specific use of a defined area of land has been undertaken for a continuous period of ten years. The burden of proof is on the applicant on a greater than 50% probability.

This is a legal process, where the evidence will be scrutinised closely. However, the planning merits of the use are not under consideration as they would be for a planning application. Proving the factual position that the same use has continued within the stated site boundary for ten years is the objective. When a Certificate of Lawfulness is granted for a particular use, no enforcement action can then be taken concerning that use.

Understanding “material change of use”

A ‘material change of use’ means the character of how the land or building is used has changed in a way the planning system considers significant. In plain terms, it is not just ‘what’ you do, but the real-world impacts it creates. What counts as ‘material’ is not defined in legislation and is assessed as a question of fact and degree, informed by what is happening on the ground and by case and appeal decisions. An intensification of an existing use can amount to a material change that requires permission.

Mezzanine floors and internal alterations

The general rule is that internal changes don’t need planning permission. However, internal work can still trigger the need for planning permission. A mezzanine floor, although wholly internal, may need planning permission in a retail setting, or where a planning condition or Section 106 obligation (legal agreement) restricts mezzanines or total floorspace.

For example, a shopping centre may lend itself to additional internal floorspace at mezzanine level but already be providing the maximum retail floorspace permitted by planning condition. Even where there is no floorspace condition, a building used for retail cannot be increased by more than 200 sq. metres of gross floorspace. In both cases, a planning permission would be required.

Listed buildings and internal works

Any works to a listed building (external or internal) that affect its character as a building of special architectural or historic interest require Listed Building Consent, quite separately from any need for planning permission. Internal alterations are not exempt and need to be assessed as to whether listed building consent is required.

Permitted development rights

Permitted development (PD) rights are a shortcut, where legislation grants permission for certain works without a planning application. The Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended) also grants permission for certain changes of use between use classes, though many require a prior approval process with the local authority.

PD rights can be removed by planning condition or by a local planning authority process which covers a defined area, known as an Article 4 Direction, in which case a full planning application is needed. A common Article 4 direction affects landlords, where the right to use a family dwellinghouse as a House in Multiple Occupation is removed and so planning permission must be obtained for such change of use.

Common use classes and permitted changes

Many business uses sit within legally defined ‘use classes’. If the existing and proposed uses are both within the same use class, the change is not ‘development’ and can be made without planning permission.

The Town and Country Planning (Use Classes) Order 1987 (as amended) specifies these use classes, including Class E (commercial, business and services), Class B2 (general industrial) and Class B8 (storage and distribution). The Class E use is wide ranging, but interpretation needs care.

Uses that do not fall within a defined class are ‘sui generis’, meaning ‘a class of their own’; any change to or from a sui generis use will require planning permission. Examples of sui generis uses include hot food takeaways, scrapyards, petrol filling stations, car showrooms and pubs, and potentially premises used for example as business centres or data centres where a bespoke mix of uses does not fit a class.

Use classes and selected permitted development routes

Examples of lawful use classes and relevant permitted change of use are given below from the 2021 amendments to the Permitted Development Rights Order 2015. Check the full Order as to whether a PD route exists and whether prior approval is required. Then confirm that there are no planning conditions or obligations, or Article 4 Directions removing PD on your site.

Class	Description	Selected PD route (examples)
Class E (Commercial, business and services)	Retail (non-hot food), food and drink for on-premises consumption, financial/professional services, medical/health services (not attached to practitioner’s home), indoor sport/fitness (with specified exceptions), non-residential creche, day centre or nurseryoffices, research and development of products or processes or any industrial process, (which can be carried out in any residential area without causing detriment to the amenity of the area)	PD Class MA permits change to Class C3 (dwellinghouses), subject to prior approval and relevant limits PD Classes G permits change to a mixed use for any purpose within Class E and as up to 2 flats, subject to prior approval
Class B2 (General industrial)	Industrial processes not falling within Class E	PD Class I permits changes to B8
Class B8 (Storage or distribution)	Storage and distribution (but not waste)	PD Class P permits changes to C3 (dwelling houses), but subject to prior approval
Class C1 (Hotels)	Hotels	PD Class T permits changes to schools and related uses, subject to conditions, or a change back to the previous lawful use (PD Class U)

Application process and key considerations

If you need planning permission, plan early and instruct reports to support the case. Councils decide change-of-use applications against policy and site-specific impacts. Key considerations include the Local Plan policy position, which is the legal starting point for the decision – applications should be determined in line with the plan policies unless material considerations indicate otherwise.

‘Material considerations’ include neighbour impact (e.g. overlooking, noise, hours, traffic and amenity), highways and parking, design and appearance of any external changes, heritage impact, environmental matters such as flood risk and contamination, and the site’s planning history and appeal decisions. All bases should be covered within the planning application, particularly if an appeal against refusal may be needed. The majority of appeals are by written representations and under new Regulations from 1 April 2026 usually no extra materials can be added to strengthen the appeal case.

Checklist: key do’s and don’ts

You should:

Check the lawful use class and planning history of the site.
Understand relevant permitted development rights.
Review planning conditions and any Article 4 Directions that may remove PD rights.
Seek Listed Building Consent where character of the building or its setting may be affected
Check Building Regulations requirements.
Obtain specialist advice where uses are complex or unclear.

You should not:

Assume minor works are exempt; check first.
Ignore planning conditions or restrictions in section 106 agreements.
Overlook the need for express permission for external works if no PD rights apply.
Rely on assumptions; always verify the lawful position.

Potential consequences of non-compliance include enforcement action, disruption to trading and costs to regularise unauthorised development.

Practical steps for businesses

Before making any change, identify your current lawful use, define your proposed use, and check whether the change is within the same use class, a permitted development route, or requires full permission. What physical works are needed to the premises and will planning permission be required? Where there is any doubt, take early advice, gather evidence, and consider a Certificate of Lawfulness to lock down your position. Remember that PD rights may be limited by planning conditions, legal agreements or Article 4 Directions, and that listed buildings may need listed building consent.

If you would like to discuss anything we have covered in this article, or if you want to find out more about how we can support you, please don’t hesitate to get in contact with a member of our team.

Disclaimer: Anything posted in this blog is for general information only and is not intended to provide legal advice on any general or specific matter.

Webinar: Changing employees' terms and conditions

Clarion — 24/01/2025

'Fire and Rehire’ – it’s a phrase that most businesses would not want to be associated with, since the P & O Ferries scandal in 2022. In addition, Labour’s Employment Rights Bill aims to ‘close the loopholes which allow firms to engage in these unscrupulous practices’.

However, in some circumstances employers may need to make changes to employees’ terms and conditions for sound business reasons and/or to avoid having to make redundancies. If the proposed changes are unlikely to be accepted by the workforce, what options do you have?

In this bitesize webinar, we will look at the current law on collective consultation for a change to terms proposal, explain how this is likely to change, consider the potential risk areas and provide some practical options for businesses needing to make changes to terms of employment.

Your speaker

Joanna Dodd, Legal Director, Employment and Business Immigration team

Joanna is an experienced litigator and has defended a number of multi-party claims in the Employment Tribunal and Employment Appeal Tribunal - including claims for unfair dismissal, discrimination and whistleblowing. Joanna excels in cutting through the detail to get to the heart of the legal issues and determining the appropriate strategy for the client efficiently and effectively.

Joanna also assists her clients with strategic HR planning - providing clear actionable advice and creative solutions.

Reserve your place

After registering, you will receive a confirmation email containing information about joining the webinar.

Coronavirus Job Retention Scheme (CJRS) & Furlough - Top Tips and Guidance

Clarion — 16/04/2020

Our Employment Team have compiled some of the key questions that companies have around the Coronavirus Job Retention Scheme (CJRS) and Furlough.

For more information please visit our blog.

The Importance of NDAs in Protecting Confidential Business Information

Clarion — 05/08/2024

Non-disclosure agreements (“NDAs”) are a crucial tool to protect the business interests of a company or individual in any marketplace, specifically in competitive or developing industries.

NDAs provide clear guidelines on how confidential information shared between parties can be used, by stating such information can only be accessed by appropriate people for a particular purpose.

Benefits of Non-disclosure Agreements

Protecting specialist industry knowledge

NDAs can be used to keep skills and knowledge ringfenced within a business, which helps to give that business a competitive advantage. Protecting confidential information with an NDA can reduce the risk of valuable information, such as product intelligence and pricing, falling into the hands of competitors and minimising the risk of losing customers.
Enhancing collaborations

NDAs allow for collaboration between businesses and reduce the risk of sensitive information being leaked. Service providers within an industry will likely work with multiple competitors. An NDA with these service providers can limit the risk of confidential information being disclosed by that service provider to your competitors.
Safeguarding intellectual property

NDAs are primarily used to protect confidential information but can also be used to establish how respective intellectual property rights are utilised. It is advisable to have a formal agreement on intellectual property in place, however, an NDA can help to protect the parties’ intellectual property if such rights are accessed as part of initial discussions under an NDA and no formal agreement is yet in place.
Controlling personal data usage

As with intellectual property, an NDA can be used to place restrictions on the use of confidential information which includes personal data, by including provisions on the processing of personal data.
Ensuring recourse for disclosure breaches

NDAs can act as a deterrent to help prevent confidential information from being leaked, however, they cannot 100% guarantee that information will not be disclosed in breach of confidential obligations. What they can do is specify a remedy if there is a breach of confidentiality. As it is difficult to remove information from public knowledge once it has been leaked, the remedy will often be the right to go to court and obtain an injunction to stop the breaching party from continuing to share the information.

Implementing NDAs and additional protective measures

Having an NDA in place is a necessary step to mitigate the risk of confidential information being disclosed or leaked outside of a business to its detriment. As set out above, an NDA cannot guarantee the confidentiality of shared information, but it can act as a deterrent, and set parameters for the use of such confidential information. For that reason, it is advisable to also put in place additional processes and procedures to protect confidential information.

The best and most appropriate steps will depend on the business and its needs; this could be by way of password-protecting key documents or information, limiting disclosure to only those who need to know the information and/or encrypting the data you wish to protect.

In summary, there are a number of steps a business can take to protect its confidential information sand control the disclosure of such information, but entering into an NDA is certainly an advisable step when valuable business information is being shared with third parties.

The exact contents of an NDA will need to be considered on a case-by-case basis but having a template NDA that can be quickly used and tailored when required is something all businesses should consider having in place as one of its tools to protect its sensitive business information.

If you would like to discuss how to protect your confidential information or if you need our Commercial team to draft a standard NDA relevant to your business, please contact us.

Disclaimer: Anything posted in this blog is for general information only and is not intended to provide legal advice on any general or specific matter.

Clarion shortlisted for six categories at the Insider’s Yorkshire Dealmakers Awards 2018

Clarion — 20/11/2018

Following the recent announcement of the TRI Awards’ shortlist, which saw Roger Hutton and the Corporate Recovery and Insolvency Team celebrating nominations for their work, Clarion has received more great news with the release of the nominees for the Insider’s Yorkshire Dealmakers Award 2018.

The Awards are the big annual event for the deal-making community.

Clarion has been shortlisted for the Corporate Law Firm of the Year. Other firms shortlisted in this category are Addleshaw Goddard, Womble Bond Dickinson, Squire Patton Boggs, Walker Morris and Pinsent Masons.

Clarion has also been shortlisted for the Community Award, which recognises companies and individuals who have done great voluntary work for charitable causes and outside of their office hours.

Clarion is also up for the award for Deal of the Year (below £5m), alongside Grant Thornton, Squire Patton Boggs and Oakley Advisory, for the NorthEdge Capital investment in Iportalis. This deal ensured the award-winning cloud services specialists iPortalis was backed by a multi-million pound growth capital investment from NorthEdge Capital, enabling its global expansion.

Clarion is also up for two awards in the Deal of the Year (between £5 - £25m) category.

One is for the £6m BGF investment in Northern Escalator Installations, for which Clarion is nominated alongside BGF, BHP Corporate Finance, and Schofield Sweeny. This deal saw the specialist engineering business Northern Escalator Installations secure a £6.4m investment from BGF to support its expansion in the UK and Europe.

The second nomination in this category is for the Walkers Transport MBO. The management buyout of this logistics specialist was backed by the independent investment firm Total Capital Partners, which is nominated alongside our firm, as well as BHP Corporate Finance, BDO, Graphene Partners, and Walker Morris.

And a special mention goes to Sarah Harrison, who has been nominated for Emerging Dealmaker of the Year. Congratulations!

The awards are due to be held on 22 November 2018 at New Dock Hall in Leeds.

The Middle East conflict: why it may be affecting your UK property deal (without you noticing)

Clarion — 24/04/2026

If you’re working on a development, managing a building, or taking new space, the Middle East conflict can feel a long way away. But real estate is connected to global supply, energy and finance markets. That means geopolitical events can impact property projects in a number of practical ways, often as delay, extra cost, or tougher negotiation.

This note explains the main “hidden routes” by which that impact can reach developers, landlords and tenants.

1. Delays to materials and equipment (even on UK-only projects)

Many building products used in the UK are imported or rely on international shipping at some point (think plant, M&E components, specialist finishes, façade items). When shipping routes are disrupted or more expensive, you may see:

Longer lead times (items arriving weeks later than planned).
Higher delivery costs.
Last-minute requests to switch to alternative products.

Why it matters: one delayed component can hold up practical completion, tenant fit-out access dates, and opening deadlines.

2. Higher costs filtering through the supply chain

Global disruption can increase costs for transport, energy and manufacturing. In property, that often turns into:

Contractors re-pricing packages.
Suppliers pushing for price increases.
Pressure on project contingencies (and sometimes on lender requirements).

For occupied buildings, higher costs can also appear as:

Increased service charge budgets (repairs, maintenance, energy-related spend).
More tenant questions about what is (and isn’t) recoverable through the service charge.

Why it matters: costs rarely sit neatly with one party, as they tend to end up being argued about in contracts and leases.

3. Insurance becoming more expensive (or more scrutinised)

Periods of geopolitical uncertainty often make insurers more cautious. Even if your asset is in the UK, you may see:

Higher premiums in some areas.
More detailed questions from insurers or brokers.
More attention on “what exactly is covered” (and on what terms).

Why it matters: insurance rent is usually passed through to tenants, and insurance wording can become a negotiation point in leases and funding.

4. Tenants becoming more cautious — and asking for flexibility

When businesses face uncertainty (costs, supply, consumer confidence), it often affects property decisions. That can look like:

Slower lettings and longer decision cycles.
More requests for breaks, shorter terms, or “get-out” options.
More focus on keeping total occupancy costs predictable.

Why it matters: most leases do not reduce rent just because a tenant’s business is under pressure. So, tenants try to build flexibility in at the start.

5. Financing and investment sentiment shifting

Geopolitical risk can influence interest rates, investor appetite and lender behaviour. In practical terms:

Funding approvals can take longer.
Lenders can ask for more reporting and tighter conditions.
Investors can place a higher value on “certainty” (programme certainty, cost certainty, covenant strength).

Why it matters: even a small shift in market sentiment can change timetables and deal dynamics.

What to look out for (depending on where you sit)

If you’re a developer:

Programme risk: check which items are “long lead” and how realistic the dates are.
Contract risk: understand what happens if deliveries slip - who gets additional time, who pays, and what triggers LADs/longstops.
Document alignment: make sure the building contract, funding documents and any agreement for lease don’t contradict each other on dates and consequences.

If you’re a landlord:

Service charge pressure: expect more questions and requests for transparency, caps, or exclusions.
Insurance: be ready for premium changes and explain them clearly (tenants accept increases more readily when the route is clear).
Letting negotiations: anticipate more demand for flexibility and consider what you can offer without weakening your asset management position.

If you’re a tenant:

Opening and fit-out dates: focus on what happens if the unit isn’t ready on time (access, longstop, and remedies).
Cost predictability: scrutinise service charge and insurance rent clauses - that’s where “unexpected” increases often land.
Flexibility: if you might need to exit or resize, negotiate break/assignment/underletting positions early.

The takeaway

You don’t need to assume a crisis in every deal. But it is worth assuming that global events can reach UK property through delay, cost and risk allocation. The earlier those issues are spotted, the easier they are to manage - and the less likely they are to turn into a last-minute dispute at completion or handover.

For advice on how these issues could impact your property transaction, please contact the team.

Disclaimer: Anything posted in this blog is for general information only and is not intended to provide legal advice on any general or specific matter.

Navigating Labour’s employment law overhaul...

Clarion — 17/07/2024

Less than two weeks after the 2024 General Election, the King’s Speech was read at the State Opening of Parliament today.

The King’s Speech outlined the new Labour government’s plans for the year.

From an employment law perspective, many of Labour’s manifesto commitments made an appearance - with a pledge to roll out legislative change within 100 days.

The main highlights are discussed below.

Key employment law changes to come

Committing to ensure workers are provided with a baseline level of security and predictability, Labour reiterated in the Speech that they will (in no particular order):

ban exploitative zero-hours contracts;
grant protection from unfair dismissal and entitlement to sick pay and parental leave from the first day of employment (subject to probationary periods to assess new hires);
end ‘fire and rehire’ and ‘fire and replace’ practices and replace the current statutory code;
make Statutory Sick Pay available to all workers from the first day of absence, by removing the lower earnings limit and waiting period;
make flexible working a default for workers from day one, with employers required to accommodate this as far as reasonable;
except in specific circumstances, make it unlawful to dismiss a woman in the first six months of her return from maternity/family leave;
introduce mandatory disability and ethnicity pay gap reporting for large employers (with over 250 people);
promote increased engagement and improved industrial relations with trade unions; and
introduce a duty to take all reasonable steps to prevent sexual harassment in the workplace.

The detail of these changes is still to be set out in draft legislation.

Notable omissions

Whilst some of Labour’s high profile manifesto commitments featured in the King’s Speech, others failed to make an appearance. Most notably:

Labour’s proposal for a single worker status, introducing a two-tier system where an individual is either a worker or genuinely self-employed;
the pledge to strengthen redundancy rights and remove the ability for an employer to define separate establishments within its business, triggering the duty to collectively consult more easily and frequently; and
a plan to give workers the right to “switch off” by disconnecting themselves from being contacted by their employer outside working hours.

The omission of these items from the King’s Speech does not necessary mean that Labour will not revisit them in the future.

It may be that they are not an immediate priority given the more complex nature, and that consultations might be likely in the future.

The new landscape

Labour have reiterated in the King’s Speech that they intend to implement “the biggest upgrade to workers’ rights in a generation”.

If successful, these changes will be introduced by Labour within their first 100 days of governing – likely to be October 2024.

For now, it will be a case of watching and waiting for the draft legislation, but employers should certainly prepare for substantial change in the above areas.

If you have any questions about any of these proposed changes and how they will impact you and your business to get in contact with Victoria and the Employment team at Clarion.

Geo-blocking – what, when, where, why and who

Clarion — 30/11/2018

What is Geo-blocking?

Geo-blocking is the term used to describe restriction of access to internet content based on a customer’s geographical location.

The Geo-blocking Regulation (EU) 2018/302 (the “Regulation”) will ban geo-blocking and “geo-discrimination” – offering different terms and conditions to customers from different Member States who are prepared to pick up the goods or access the services from a trader’s location. It will do this by introducing an obligation to treat EU customers in the same manner as local customers when they are in the same situation, regardless of their nationality, place of residence or place of establishment.

We take a look at the Geo-blocking Regulation and what it means for you.

The Middle East conflict: why it may be affecting your UK property deal (without you noticing)

Clarion — 24/04/2026

This note explains the main “hidden routes” by which that impact can reach developers, landlords and tenants.

1. Delays to materials and equipment (even on UK-only projects)

Longer lead times (items arriving weeks later than planned).
Higher delivery costs.
Last-minute requests to switch to alternative products.

Why it matters: one delayed component can hold up practical completion, tenant fit-out access dates, and opening deadlines.

2. Higher costs filtering through the supply chain

Global disruption can increase costs for transport, energy and manufacturing. In property, that often turns into:

Contractors re-pricing packages.
Suppliers pushing for price increases.
Pressure on project contingencies (and sometimes on lender requirements).

For occupied buildings, higher costs can also appear as:

Increased service charge budgets (repairs, maintenance, energy-related spend).
More tenant questions about what is (and isn’t) recoverable through the service charge.

Why it matters: costs rarely sit neatly with one party, as they tend to end up being argued about in contracts and leases.

3. Insurance becoming more expensive (or more scrutinised)

Periods of geopolitical uncertainty often make insurers more cautious. Even if your asset is in the UK, you may see:

Higher premiums in some areas.
More detailed questions from insurers or brokers.
More attention on “what exactly is covered” (and on what terms).

Why it matters: insurance rent is usually passed through to tenants, and insurance wording can become a negotiation point in leases and funding.

4. Tenants becoming more cautious — and asking for flexibility

When businesses face uncertainty (costs, supply, consumer confidence), it often affects property decisions. That can look like:

Slower lettings and longer decision cycles.
More requests for breaks, shorter terms, or “get-out” options.
More focus on keeping total occupancy costs predictable.

Why it matters: most leases do not reduce rent just because a tenant’s business is under pressure. So, tenants try to build flexibility in at the start.

5. Financing and investment sentiment shifting

Geopolitical risk can influence interest rates, investor appetite and lender behaviour. In practical terms:

Funding approvals can take longer.
Lenders can ask for more reporting and tighter conditions.
Investors can place a higher value on “certainty” (programme certainty, cost certainty, covenant strength).

Why it matters: even a small shift in market sentiment can change timetables and deal dynamics.

What to look out for (depending on where you sit)

If you’re a developer:

Programme risk: check which items are “long lead” and how realistic the dates are.
Contract risk: understand what happens if deliveries slip - who gets additional time, who pays, and what triggers LADs/longstops.
Document alignment: make sure the building contract, funding documents and any agreement for lease don’t contradict each other on dates and consequences.

If you’re a landlord:

Service charge pressure: expect more questions and requests for transparency, caps, or exclusions.
Insurance: be ready for premium changes and explain them clearly (tenants accept increases more readily when the route is clear).
Letting negotiations: anticipate more demand for flexibility and consider what you can offer without weakening your asset management position.

If you’re a tenant:

Opening and fit-out dates: focus on what happens if the unit isn’t ready on time (access, longstop, and remedies).
Cost predictability: scrutinise service charge and insurance rent clauses - that’s where “unexpected” increases often land.
Flexibility: if you might need to exit or resize, negotiate break/assignment/underletting positions early.

The takeaway

Disclaimer: Anything posted in this blog is for general information only and is not intended to provide legal advice on any general or specific matter.

Clarion

Mock Employment Tribunal

The scenario

What's included

Event details

Coronavirus – Break clauses in commercial leases

Webinar - Construction law update: an overview of recent cases and developments

Agenda

Speakers

Registration & Timings

EVENT: Robots - friend or foe?

Supply chain contract management blog series #4: How to read and understand a force majeure clause

Top tips to reading and understanding a force majeure clause (FMC)

How can we help

Webinar: Workforce Flexibility - 26th April at 9:00 am

The session will cover...

Your speakers

Regsister your free place here: https://us02web.zoom.us/webinar/register/WN_bRf2e3zkS8qFjHlLrEeepA

Business Immigration changes – Here we go again

Degree is key

Money makes the world go round

Farewell Immigration Salary List, we hardly knew ye

Closed for business – Social care visas

What next?

Webinar: Business immigration update for sponsors - 6 March 2025

Your speakers

Reserve your place

Section 215 Notices (harm to local amenity): A practical guide for owners and occupiers

What can a Section 215 Notice require?

How do authorities decide to act?

Your rights of appeal

Non‑compliance and enforcement

Recent themes and practical tips

How we can help

Energy in manufacturing – Corporate Power Purchase Agreements (CPPAs)

Manufacturing seminar invitation - Data Data Everywhere...

Carillion – reducing your risk exposure in the supply chain

‘Office to residential’ permitted development rights – not always an easy option

Concerns and challenges

Key issues identified in the appeal

Lessons for developers

The continued popularity of class MA conversions

British Steel – reducing your risk exposure in the supply chain

The current impact of coronavirus on the construction sector

Supply chain contract management blog series #1: Contract delay or disruption? What can you do?

Summary

Look at your contract

Time of the essence? – don’t delay if you want to terminate!

Time not of the essence? – other options

Communications with the other side

How can we help

Planning applications must be appeal-ready from the outset

A subtle but significant shift

Written representations as the decisive forum

What this means

A reinforcement of early, comprehensive preparation

In summary

The Future of Hydrogen - An Essential Webinar for Manufacturers

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Cybercrime’s impact on Debt Recovery

How is cybercrime affecting debt recovery?

How can the Payee protect themselves?

How can the Payer protect themselves?

Who is at fault?

Businesses, public sector and academics join forces to drive investment in Kirklees

[Updated] The Labour government's employment law changes: A guide for GCs and in-house legal teams

1. Tackling ‘exploitative’ work patterns – an end to zero-hours contracts

2. Giving employees flexibility with a better work-life balance

3. Removal of the qualifying period for unfair dismissal claims

4. Strengthening redundancy protections with collective consultancy threshold changes

5. Empowering trade unions

Conclusion

To sue, or not to sue, that is the question…

Escalating non-payments

When to consider legal proceedings?

Decision

Protecting your brand when exporting: Why it matters for UK companies

1. Your UK registered Intellectual Property rights are not universally protected

2. Enhances market confidence

3. Prevents costly legal battles