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Employers are increasingly using Artificial Intelligence (AI) technologies in the workplace. However, while AI offers enhanced productivity, streamlined processes, and cost savings, it is not without challenges. In addition to ethical and data privacy concerns, there is genuine trepidation about AI and potential employee discrimination. As such, AI raises some important legal questions when it comes to employment law.

 

In response, the House of Commons Library has recently published a report on Artificial Intelligence and Employment Law. In particular, the report looks at the thorny issue of algorithmic management.

 

What is algorithmic management?

Algorithmic management describes the use of AI and other technologies to make management decisions. For example to:

 

• Automatically score tests as part of the recruitment process
• Assist with performance management reviews
• Allocate tasks and schedule shifts
• Monitor the productivity of their workforce
• Monitor health and safety in the workplace.

 

There is growing unease about how some employers are using AI and algorithmic management, and there have already been legal challenges.

 

In February 2021, Uber lost a judgement in the Netherlands after the ‘robo-firings’ of some of its drivers. The Court of Amsterdam ordered Uber to reinstate drivers who claimed they were unfairly terminated by algorithmic decision-making that was solely automated. Uber was also ordered to pay compensation. In this case, the drivers claimed that Uber’s technology cost them their livelihoods as the software was incapable of recognising their faces.

 

Here in the UK, the Independent Workers’ Union of Great Britain (IWGB) and the App Drivers & Couriers Union (ADCU) have both taken legal action against Uber, alleging that its software is inherently racist as it has difficulty accurately recognising people with darker skin tones and has unfairly dismissed drivers.

 

What does the law say?

Currently, no UK laws exist to specifically govern the use of AI and other algorithmic management tools in the workplace. Instead, regulations built for other purposes attempt to cover these new technologies and restrict how they can be used. These include:

 

• Common Law. To ensure mutual trust and confidence, employers must be able to explain how they make decisions that affect their employees. Automatic decision-making can make this problematic, thus undermining the employment contract.
• Equalities Law. The law prohibits employers from discriminating against their employees on the grounds of any protected characteristic. However, AI tools can exhibit bias, resulting in unlawful workplace decisions.
• Employment Law. The law protects employees with at least two years of continuous service from unfair dismissal. However, flaws in AI could lead to unfair dismissal decisions.
• Privacy Law. This places restrictions on the use of surveillance tools to monitor workers.
• Data Protection Law. Article 22 of the GDPR concerns “automated individual decision-making, including profiling”. Under this legislation, people “have the right not to be subject to a decision based solely on automated processing, including profiling, which produces legal effects concerning him or her or similarly significantly affects him or her”.

 

The latest AI report goes into these laws in more detail.

What does the future of AI regulation look like?

In the ministerial foreword of the Government’s 2023 policy paper on AI regulation, Nadine Dorries, the then Secretary of State for Digital, Culture, Media and Sport said that a ‘pro-innovation’ regulatory attitude was key to translating AI’s potential into societal benefits. In short, the Government wants a non-statutory ‘light touch approach’ to AI regulation.

 

The Opposition has criticised the Government’s stance and has called for a more interventionist approach. And the TUC has recently launched a new AI task force that aims to publish a draft “AI and Employment Bill” with new legal protections for workers and employers. According to the TUC, the UK is “way behind the curve” on the regulation of AI, with UK employment law failing to keep pace with technological development.

Safeguard your business from the risk of AI

When it comes to employment law and AI use, the matter is far from settled. But there are steps employers can take now to safeguard their businesses. In particular, where AI has the potential to make or inform decisions about individuals, employers must understand how it could impact their legal obligations. In addition, we advise all employers to:

 

• Conduct an impact assessment to identify and mitigate any risks before introducing new technology.
• Carry out an impact assessment to identify where AI is currently being used and how it impacts employees/workers (and potential employees/workers)
• Establish policies to cover the use of AI in the workplace. This should include where it isn’t acceptable to use AI and the appropriate use of AI.
• Make sure humans are involved in the decision-making process, with a final say in all determinations.

 

Underwoods’ employment and data protection solicitors will work with you to create an AI policy that protects your business from harmful claims. Providing straightforward advice and practical solutions, contact us today to find out more.

 

This article is for general purpose and guidance only and does not constitute legal advice.  It should not replace legal advice tailored to your specific circumstances.

 

 

On 13 July 2023, the UK government announced that it was increasing the cost of UK visas. The increase will see an additional cost burden placed on employers and visa applicants. The government expects to generate over a billion pounds in revenue via the new fees, with the money earmarked to cover pay increases for public sector workers following a period of strikes and disputes.

Here is a short summary of the expected changes:

• Work and visit visa application fees will rise by 15%
• Fees for student visas, certificates of sponsorship, settlement, citizenship, wider entry clearance, permission to stay and priority service applications will increase by at least 20%
• The cost of priority services and student visas will be the same whether applicants apply inside or outside the UK.
• The main Immigration Health Surcharge (IHS) rate is also likely to increase to £1,035 per year (currently £624), with the discounted rate for students and those under 18 is rising from £470 to £776 per year.

The IHS is a mandatory tax on sponsors that ensures applicants can access the NHS in the UK. There are a few exemptions to paying the surcharge; for example, Health and Social Care Visa workers do not pay this tax.

What should employers do now?

The implementation date for the increase has yet to be confirmed. However, the changes could happen as early as late summer or early autumn 2023 when Parliament resumes.

There is no doubt that some employers who rely on foreign national workers will struggle with the increased costs, especially amid a cost-of-living crisis. As such, we advise relevant employers to take the following steps to minimise the impact as much as possible:

• Review upcoming recruitment plans and (where possible) encourage workers to make their visa applications early, before the fee changes take effect.
• Evaluate their visa application procedures. For example, while the IHS surcharge is payable by the applicant, not the sponsor, some businesses agree to pay this as part of the recruitment package. Employers may need to consider whether they can continue to do this.
• Implement ‘clawback agreements’ which require employees to repay specific immigration fees if they leave their jobs early. A specialist lawyer must draft these agreements to ensure they are legally enforceable.
• Factor in the higher costs in their wider budgetary planning.

 

If you require further information about anything covered in this briefing, please contact Aoife Reid or your usual contact at the firm on +44 (0)20 7526 6000.

This article is for general purpose and guidance only and does not constitute legal advice.  It should not replace legal advice tailored to your specific circumstances.

According to Insolvency Service statistics, 4,262 construction firms became insolvent in the 12 months up to 30 June 2023. Continuing a worrying trend from 2022, construction saw more insolvencies than any other sector during the six months of the year, with construction firms accounting for nearly one in five company insolvencies.

It’s bad, but according to a report from Red Flag Alert^[1], it could get even worse.

Estimating that there is around £300 million of bad debt within the UK construction sector, the report predicted that “a perfect storm of factors could lead to more than 6,000 company insolvencies in the UK construction sector during 2023”.

There are many reasons why the sector is facing large-scale administrations, including:

• Significant increases in material costs (way in excess of inflation)
• Supply chain disruption/ difficulties procuring materials in reasonable timescales primary due to Covid-19, shipping issues etc.
• Bad debt (with failing companies dragging others into difficulty)
• Having to repay Covid-era loans
• High energy costs
• Inflation and interest rate increases
• Staff shortages.

Facing the risk of insolvency, whether it’s your own business or one of your contractors, customers or suppliers, can be extremely difficult and complicated to handle. And all too often, the stress, disruption, and uncertainty can lead to contractual disputes. For example:

• Disputes over payment for completed work, materials, or services provided;
• Difficulties in meeting contractual obligations, such as delays in project completion or a failure to adhere to project specifications often leading to claims for extended project durations and additional costs;
• Disputes over the ownership of materials on-site;
• Disputes over any existing bonds or guarantees.

Furthermore, if one party faces insolvency, it’s not uncommon for the other party to consider terminating the contract. However, this can be complex and lead to additional disputes about the validity of any termination notices.

 

Early warning signs

 

A company becomes insolvent when it is no longer able to meet its debts and/or when its liabilities exceed its assets. And this doesn’t often happen without warning.

Early indications that a building contractor may be struggling financially include:

• Late payments. If a contractor is consistently late making payments to subcontractors, suppliers, or staff, this is a red flag that they might be experiencing cash flow problems.
• Payment demands/changes. If a construction firm starts to negotiate early payment, more frequent instalments, or unjustified charges, this could suggest it is in financial difficulty.
• Subcontractor/supplier disputes. Subcontractor and supplier disputes can be a clear warning sign that things are not as they should be.
• Safety concerns. Financial struggles might lead to a lack of focus on safety, resulting in potential accidents or violations.
• Quality issues. If the standard of work is compromised, this could be due to a shortage of resources. This includes instances where essential quality upgrades are not taking place as expected.
• Disappearing materials. If resources start vanishing from site, it could be a reason for concern.
• If a project suddenly starts experiencing delays and a shortage of labour, financial problems could be behind the holdup. Businesses should also watch out for any delays to the filing of accounts or annual returns.
• Communication problems. If you cannot get hold of key employees or management, if they suddenly leave a company, or if you find increasing aggressiveness in communication, this could be due to financial instability.
• Rumours about a firm’s financial position. Often, even if you do not spot any warning signs, there will be rumours about a company’s financial struggle.

By paying attention to these early warning signs and seeking communications and clarification from construction firms, you may be able to protect your interests and stop a bad situation from escalating.

 

Top tips for dealing with insolvency

 

For businesses facing insolvency

For most construction businesses in financial dire straits, it might be possible to rescue the company. Should issues occur, the following steps could help:

• Reviewing your business plan, budgets, and credit control policies to establish how to generate sufficient cashflow to keep the business running and stop its credit position from deteriorating (e.g. invoicing on time, chasing up any outstanding debts, renegotiating more favourable terms, etc.).
• Speaking to your bank, funders, and major creditors (e.g. HMRC) to ensure you give the company the best possible opportunity to continue trading. Very few creditors stand to gain financially from making you insolvent, so most will agree to an affordable repayment plan, even if over an extended period.
• Consider administration to give your business the breathing space needed to rescue the company as a going concern.
• Seek early professional advice. The earlier specialist legal advice is sought, the more options will likely be available to the business and the more control it can exercise over the process. Legal advice is also recommended to protect directors of insolvent construction companies from potential claims.

For suppliers and clients of businesses facing insolvency

Any business entering a commercial relationship with a construction firm should always undertake robust due diligence to assess the risks – especially given the high level of insolvencies in the sector.

At Underwood & Co, we seek to include provisions in all our client’s construction contracts to protect them in worst-case scenarios. For example, clauses to safeguard funds, express termination provisions, and collateral warranties. We also include lien waivers to stop subcontractors and suppliers from making claims against our clients should their contractors fail to honour their debts.

Nevertheless, sometimes things go wrong. As such, if you find yourself in a business relationship with a struggling company, we recommend that you:

• Communicate openly to address your concerns and get clarity on any plans to address the situation;
• Document everything and make sure you have clear records about any contracts, the status of the works on site, and any materials already paid for (including those that have not arrived and any that have disappeared);
• Ensure you retain ownership of materials/IP if you know that the construction business is in trouble. This will help to protect your financial position should the firm become insolvent. If possible, secure physical assets or materials on-site;
• Make sure the construction firm has all the necessary insurances/protections in place (e.g. professional indemnity insurance);
• Monitor the situation. For example, by looking out for early warning signs, any escalation of difficulties, and keeping an eye on the London Gazette and Companies House so you will know if the contractor officially enters the insolvency process;
• Look at whether you can diversify your suppliers/contractors to reduce dependency on a single entity facing financial issues (depending on your contract, you may be prohibited from doing this);
• Seek legal advice to ensure you understand the contractual rights and obligations placed on you and the other party. Once you know what you are dealing with, an expert lawyer will help you to negotiate and navigate the situation to your best possible advantage. This includes checking your termination rights and insolvency provisions, negotiating performance bonds or guarantees to ensure completion or compensation, and establishing new payment terms to reduce the risk of losing large sums of money.

It is also important to be aware of how intrinsically linked construction matters often can be with development finance obtained from lenders.  The collapse of a contractor often triggers an event of default under a lender’s facility agreement.  Navigating a solution with the lender is not straightforward but is something that we at Underwood & Co have extensive experience with.

If you require further information about anything covered in this briefing, please contact Aoife Reid, Mark Smith or your usual contact at the firm on +44 (0)20 7526 6000.

This article is for general purpose and guidance only and does not constitute legal advice.  It should not replace legal advice tailored to your specific circumstances.

 

On the 24^th of July 2023, the Protection from Redundancy (Pregnancy and Family Leave) Act 2023 (the “Act”) will come into force. Under this new Act, pregnant employees and employees recently returning from parental leave will have priority in terms of being offered suitable alternative vacancies should their employer be carrying out a redundancy process.

What is the current position?

At present, employers are required to offer employees on maternity leave, shared parental leave or adoption leave, redeployment opportunities, should such a role be available, over other employees whose positions have also been confirmed as redundant when the employer is looking for suitable vacancies for these employees as part of the redundancy process.

What will change with the new Act?

The Act extends this priority status to employees who:

• are in a “protected period of pregnancy”;
• have recently suffered a miscarriage; and
• have recently returned from maternity leave, shared parental leave and adoption leave.

However, the Act itself contains little detail and further regulations are awaited to clarify how the extension of these rights will work. These regulations are not expected to come into force until April 2024.

The Act does not specify what amounts to recently returned from maternity leave or adoption leave, though, based on the consultation period and government press release in respect of the Act, employees are expected to benefit from an additional 6-month period after returning from maternity or adoption leave.

For employees returning from shared parental leave, employers will need to wait for the regulations before it is clear for how long they will be entitled to this new redundancy protection. The consensus from the consultation was that 6 months would be disproportionate if the employee had taken only a week of shared parental leave, but there must be some protection that is proportionate.

It is also not yet certain how the “protected period of pregnancy” will be determined, though, it is likely to be from when the employee informs their employer that they are pregnant until 6 months after they return from maternity leave (pending confirmation in the regulations of the 6-month period). The Act does make clear however, that the protected period may commence after the end of the pregnancy, to ensure that employees who have suffered a miscarriage and then inform their employer, are covered by the protections, where their employer was not aware they had been pregnant until after the miscarriage. Currently, the law only recognises miscarriages that take place after 24 weeks (when the maternity leave entitlement is granted).

The new law does not offer the redundancy protection to employees on paternity leave.

It is likely that the regulations will also contain details of the implications for failure of an employer to be compliant with the Act. It is expected that the employee will have a claim for automatic unfair dismissal, which is the case for employees on maternity leave, shared parental leave and adoption leave at present.

Impact on employers

Employers are not required to take any action in response to the Act just yet, as we wait for the regulations to be published next year. However, they should be aware of the expanded coverage of the redundancy protections which will now last from when an expecting mother tells their employer that they are pregnant to 6 months after they return from maternity leave and the potential implications this may have on their business.

Employers undertaking a redundancy exercise will, under the Act, be required to give priority to a wider group of employees for suitable alternative vacancies and will need to be aware of which individuals will now be captured by the protections. It also poses an issue that, if a redundancy is pending, employees may feel pressured to inform their employer that they are pregnant earlier in order to be covered, perhaps even before their 12-week scan. Employers should also identify available and suitable vacancies for those with priority.

The merits of protecting new and expectant parents from competing for redeployment opportunities at this vulnerable time are clear, though this may disadvantage high-performing employees without priority status, which could present management difficulties, that employers should be prepared for.

 

If you require further information about anything covered in this briefing, please contact Michael McDonnell, Will Gubbins, Elena Kadelburger or Paddy Cox  or your usual contact at the firm on +44 (0)20 7526 6000.

This article is for general purpose and guidance only and does not constitute legal advice.  It should not replace legal advice tailored to your specific circumstances.

Devised to help transform the rental housing landscape in England, the Renters’ (Reform) Bill had its First Reading in the House of Commons on 17 May 2023. The Bill aims to provide “safer, fairer, and higher-quality homes” for millions of tenants, and forms part of the Government’s wider levelling-up strategy.

As yet, there is no confirmed date when the Bill will have its Second Reading. It is at this stage that the reforms will be given proper debate and scrutiny in the Commons. Nevertheless, when pressed on the Bill’s progression, Penny Mordaunt, the Leader of the House of Commons said she was “optimistic” that we would “not have long to wait”.

With no set timeline, what do we know about the Bill so far?

While not a comprehensive summary, here are some key takeaways landlords and tenants should know about the Renters’ (Reform) Bill.

The Bill will abolish no fault evictions 

One of the most talked about parts of the Bill is the commitment to abolishing section 21 ‘no fault’ evictions. The change aims to provide greater security to tenants as landlords will only be able to evict them in very specific circumstances (e.g. missed rent payments, antisocial behaviour, if they are moving into or selling the property). According to the government, this change will empower tenants to challenge poor practices and unfair rent increases without fear of eviction.

On the flip side, the Bill also proposes the introduction of more comprehensive possession grounds to make it easier to repossess properties where tenants are at fault.

The Bill will introduce a new Private Sector Property Portal

If passed, the Bill will pave the way for a new digital property portal, with landlords legally required to catalogue themselves and their properties on a new register. Initially, this system will be a database of landlords and their properties. Later, this database will be used as the basis of a more comprehensive “Privately Rented Property Portal” service. The service will help landlords better understand their legal obligations, while giving tenants more insight into the standard of the properties they are renting.

Similar portals already exist for private landlords in Scotland and Wales.

The Bill will introduce a new Ombudsman

The Bill also requires all private landlords to join a non-voluntary government approved Ombudsman redress scheme – designed to bring ‘quicker and cheaper’ resolution to disputes.

The Ombudsman will empower tenants to seek free redress, should their landlords fail to deal with a legitimate complaint about their tenancies. Where landlords are found to be at fault, the Ombudsman will have the power to put things right, including “compelling landlords to issue an apology, provide information, take remedial action, and/or pay compensation of up to £25,000”.

The Bill will abolish fixed term assured tenancies

While most rental agreements start as fixed term tenancies (assured shorthold), the Bill aims to change this. If the reforms are implemented, all new tenancies will be rolling month-by-month (periodic tenancies).

Purpose-built student accommodation will be exempt from these changes. However, the National Residential Landlords Association (NRLA) has raised concerns that plans to abolish fixed-term tenancies will “decimate” the student housing market.

The Bill will make changes to the procedure for rent increases

Under the new Bill, landlords will only be able to increase rents once per year, and they will have to give tenants two months’ notice before doing so (the current notice period is just one month).

The Bill also aims to safeguard tenants against “backdoor evictions”, and stop landlords from implementing excessively above-market rents to force renters out. While landlords can still increase rents to the market price, tenants can appeal any excessive increases, and an independent tribunal will rule on the matter.

The Bill will give tenants the right to request permission to keep a pet

One part of the Bill that has been very warmly received by tenants is the right to request that they can keep pets in their rented homes. This means that, rather than strictly prohibiting animals in rented accommodation, landlords will have to carefully consider each request. While they cannot unreasonably refuse applications to keep a pet, landlords will be able to ask that tenants pay a premium or insurance to cover any potential pet-related damage.

The Decent Homes Standard will apply to the private rented sector

When it comes to housing, the Government is also committed to further reforms. This includes applying the Decent Homes Standard – through which social housing landlords must ensure that their properties are in good repair and free from health and safety issues – to the private rented sector.

In addition, private sector landlords will no longer be permitted to blanket ban certain renters (e.g. those receiving benefits).

Landlords should act now

While the Renters’ (Reform) Bill has been described as a ‘once-in-a-generation overhaul’ of England’s housing laws, it has not been without controversy. Tenant groups such as the Nationwide Foundation have called for the Bill to be made even tougher to help tenants, and there are questions about how and if landlords will be supported during any transition period.

With the Bill expected to become law by the summer of 2024, if you would like more information or advice as to how the Renters’ (Reform) Bill could impact you, our experienced team is here to help; please contact Aoife Reid areid@underwoodco.com, Paul Twomey ptwomey@underwoodco.com.

 

This article is for general purpose and guidance only and does not constitute legal advice.  It should not replace legal advice tailored to your specific circumstances. 

For most people the closest they get to cryptocurrency is when it makes the news. As an asset class it comes with confusing terminology and jargon, not all of which has a precise legal definition. Yet for all the talk of its imminent collapse or fundamental risks, since 2018 Bitcoin, the most famous crypto out there, has seen an increase in value of some 334 percent (as of 20^th June 2023)[1] and is trading at around £21k per ‘coin’. Other currencies such as Ethereum have seen similar increases in value. Increasingly, investors in virtual currencies have been looking to utilise this uplift in value in the real world.

For most individuals the most significant investment and their most valuable asset is real estate, often their home, but perhaps residential investment property or commercial property. Can the cryptocurrency investor therefore utilise their coins or their profits in a real estate transaction? The short answer, should be yes. It is of course well known that a fundamental rule of contract is that consideration does not automatically connote money. It must simply be sufficient. Therefore a willing seller and a willing buyer could agree to use a cryptocurrency as consideration for a real estate transaction (although considering price volatility this carries its own risks which we shall not dwell on here). What is more likely, and has been experienced by this author, is that a buyer in a transaction wished to use proceeds gained from the conversion of cryptocurrency to fund a real estate purchase.

There lies the rub. Law firms are required to comply with the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 (as amended) alongside the Proceeds of Crime Act 2002 and the Terrorism Act 2000. As anyone who has sent funds to a solicitor will know, we are liable to ask some quite intrusive questions about the source of those funds. It is not just a case of “they’re from my bank account..”, rather like school maths lessons the sender must “show their workings”. From the solicitor’s perspective that means that we must be shown evidence of the accumulation of the funds, be that from savings, inheritance, sale of a property or even a lottery win. Whilst it can be invasive and a touch forensic, it is not that difficult to provide the required evidence. This is where cryptocurrencies fall down.

The Problem

Crypto,  quite literally means hidden or secret. One of cryptocurrency’s great strengths, at least to its advocates, is that they are essentially anonymous, decentralised, with no national or supranational entity that regulates use. This also makes it of great use to money launderers. The anonymity provided by the online ‘wallets’ that most traders in cryptocurrencies use to hold their assets means it is almost impossible to adequately trace exactly where the funds originated from. If you are considering using funds raised from trading in cryptocurrencies to finance a real estate transaction, it is important that from the very outset you are prepared to evidence the source of the funds used to acquire the cryptocurrency, that you have had control over the cryptocurrency throughout and it has not been ‘mixed’ or stored in an unhosted wallet and that the cryptocurrency has performed in such a way to align with any increase in value over the original investment

The Future

Horizon scanning may be, for the most part, a fool’s errand, yet cryptocurrency continually weathers the storms that hit it and it is becoming clear that it will form part of the financial landscape of the future. Until there is a much more stringent regulatory framework in place which brings cryptocurrency trading into the existing money laundering regulations the use of funds generated from this asset class will mean that the legal sector, especially in transactional real estate, will continue to view these funds with suspicion.

If you require further information about anything covered in this briefing, please contact Oliver Whitehead or your usual contact at the firm on +44 (0)20 7526 6000.

[1] Yahoo Finance Bitcoin GBP (BTC-GBP) price, value, news & history – Yahoo Finance accessed 20 June 2023.

This article is for general purpose and guidance only and does not constitute legal advice.  It should not replace legal advice tailored to your specific circumstances. 

The Office for National Statistics (ONS) has published their overview for May 2023, revealing an increase and now record levels of individuals not currently working due to long-term sickness. While the ONS has attributed the increase in inactivity due to back and neck pain (possibly due to working from home conditions) and post-viral fatigue (a possible impact of long Covid), significantly the ONS reported an increase in mental health conditions.

In a timely development which preceded the ONS’ May 2023 release, ACAS (the Advisory, Conciliation and Arbitration Service for employers and employees) issued new advice to employers on managing stress. This guidance, which is non-binding, was prompted by an ACAS commissioned YouGov poll on workplace stress, in which 33% of workers surveyed felt that their organisation was not effective at managing work-related stress and 63% felt stressed due to rising living costs.

How can employers identify causes and signs stress?

The guidance provides employers with direction in managing work-related mental health, initially setting out the potential causes of stress that individuals may experience both at and outside work and signs of stress that managers should look out for among their employees. It prompts managers to have an informal chat with the individual to better understand how they are feeling should these indicators be spotted and helpfully suggests that employees could be encouraged to complete a ‘Wellness Action Plan’. This would assist individuals becoming more mindful of their own mental wellbeing and promote conversation with and support from their manager.

What are employers’ legal obligations in this area?

The guidance continues to set out the legal framework of work-related stress (which is covered in the Health and Safety at Work Act 1974 and the Management of Health and Safety at Work Regulations 1999). Employers have legal obligations to identify any risks to their employees’ health via a risk assessment. The guidance provides further explanation on how to carry out risk assessments effectively, and following this, employers would need to take measures to prevent or reduce work-related stress.

What support can employers provide?

To support employees suffering from work-related stress, employers should be sensitive and supportive in talking with such individuals, while maintaining confidentiality unless good reason not to is of upmost importance. For staff who are absent from work due to stress, the guidance explains the benefits of keeping in touch with employees and how to support them in a return to work through meetings, adjustments and action plans.

How can employers prevent work-related stress?

It is advised that employers have a clear policy on mental health and the guidance suggests a number of steps targeted at preventing work-related stress in the first place. However, the overriding take away from the release is the importance of support from employers and the encouragement of open dialogue between employers and employees in this area and removing the barriers and stigma around mental health, which Mental Health Awareness Week promotes so well year on year.

If you require further information about anything covered in this briefing, please contact Michael McDonnell, William Gubbins or your usual contact at the firm on +44 (0)20 7526 6000.

This article is for general purpose and guidance only and does not constitute legal advice. It should not replace legal advice tailored to your specific circumstances.

The Building Safety Act 2022 was a crucial response to the Grenfell tragedy.  The Act seeks to ensure that residential buildings are built, maintained, and secured in a way that prioritises safety, especially when it comes to cladding issues.

Under the new legislation, qualifying leaseholders are largely protected from the sometimes unexpected and overwhelming costs of repairing dangerous defects in their buildings.

What has changed?

Before the Act, property owners shouldered the costs of fixing safety issues in older buildings. The Act places this responsibility primarily on building owners, which includes freeholders, management companies, and any other person/organisation responsible for the maintenance and repair of buildings. As well as cladding, protection is offered for non-cladding safety defects, although leaseholders may have to contribute toward certain costs (capped and spread over ten years).

While building owners are allowed to recover some of the costs associated with their new safety obligations from leaseholders through the service charge, they are prohibited from billing homeowners for replacing unsafe cladding systems. This restriction also applies to people with non-qualifying leases if the original developer or associated company still owns the building.

Building owners are not only required to identify and fix safety issues, but also to register with the new Building Safety Regulator. Non-compliance with the safety requirements can result in enforcement action by the regulator.

A new Building Safety Fund is also available to help cover the costs of remediation work.

Who is a qualifying leaseholder?

A qualifying leaseholder is someone who:

• Owns property in a ‘high-risk’ building (one that is above 11 metres or five storeys) which contains at least two dwellings
• Owned their leasehold property on 14 February 2022
• Owned the property as their main home or owned no more than three UK residential properties.

In April 2023, the Association of Leasehold Enfranchisement Professionals (ALEP) wrote to the Government to clarify the definition of a qualifying lease. As it stands, if a leaseholder surrenders an existing lease before being granted a new one, the protections offered by the Act do not apply to the new lease if issued after 14 February 2022. The Government is seeking to solve this problem, but until then, it’s crucial to seek legal advice if you need a new, extended, or varied lease.

Buying or selling an affected property?

You must complete a leaseholder deed of certificate and give this to the building owner if selling an applicable high-rise flat. This certificate establishes whether your lease is a qualifying lease. Buyers will want to ensure they have this protection. The building owner must then provide a landlord’s certificate within four weeks. The landlord’s certificate should set out any upcoming remediation works. Buyers will need a copy of this document to establish any disruption/costs and determine what will likely be recouped via the service charge.

The standard forms used in residential property transactions include these requirements, but it’s best to request these documents as soon as possible to avoid potential delays.

If you require further information about anything covered in this briefing, please contact Mark Smith, Aoife Reid or your usual contact at the firm on +44 (0)20 7526 6000.

This article is for general purpose and guidance only and does not constitute legal advice.  It should not replace legal advice tailored to your specific circumstances.

There is no denying that Brexit has impacted the United Kingdom (UK) in a number of ways, and how particularly it has impacted the legal industry.

From issues regarding citizenship, EU sovereignty and trade more generally, there has also been an impact regarding foreign judgments, and the enforcement of them. This article will summarise the enforcement options available to a party in whose favour a judgment was made in another country. It should be noted however, that typically these enforcement options are only for monetary awards.

The Options:

Administration of Justice Act 1920
This Act will be the best option for judgment creditors from most Commonwealth countries, British overseas territories, Cyprus or Malta. The judgment creditor can apply to register the judgment in the UK in the High Court of England at any time within 12 months of the judgment being entered into in the foreign jurisdiction. There are caveats at s.9(2) of the Act regarding when a judgment will not be registered, but the decision to be registered is a matter for the judge to decide. As this is primary legislation, if the judgment creditor has this option it would be the most preferable out of the others here.

Bilateral Treaties
This is another source of law that governs enforcing a judgment in the United Kingdom. If the UK has made a treaty with another country regarding recognition of judgments, then this will allow a judgment to be enforced. The treaty wording depends on how the judgment creditor would go about this, but typically they would have to register their judgment in the UK within 12 months of it being entered into.

The Hague Convention
The 2005 Hague Convention on Choice of Court Agreements is an international treaty under which the member states to it recognise and enforce judgments in terms of a contract’s jurisdiction clause. This means that parties are free to choose where their case (if any) is heard and judged. The UK is now a member of the Hague Convention, separate from their prior membership to it only through the EU.

To enforce a judgment under this convention, it must be registered in the UK ‘without delay’. There are various grounds for refusal under Article 9, but the key test as to whether it is registrable is from Article 8(3) which requires the foreign judgment must have been enforceable in the jurisdiction that it was awarded in, at the time it was awarded. The application for the judgment to be registered comes from Part 74 of the Civil Procedure Rules.

Common Law
Cases which do not fall under the Hague Convention, a bilateral treaty or any other English statute will be governed by the common law. In order for the English courts to have the power to enforce a foreign judgment, the judgement must be for a definite sum, be final and not have been issued in respect of taxes, penalties or multiple damages awards. The definition of ‘final’ in this context was explored in the case of Aeroflot-Russian Airlines v Berezovsky [2014] EWCA Civ 20 as being one that precludes the other party from bringing fresh proceedings in their foreign jurisdiction.

What happens next?

Once the judgment is registered in the English courts, the judgment creditor will be able to enforce it in the same way as if it had been entered into in the courts of England and Wales in the first place. This gives a variety of options for the creditor, which, should you need an assistance with executing, one of our team would be happy to help with.

Darcy Still, Trainee, July 2022

Elena will be organising and will moderate the TRADE Commission panel on “Asia as avant-garde: new distribution forms – the rise of social media as sales channel”. She will also be speaking at the Litigation Commission panel on “(Virtual) Dispute resolution in Asia”.

If you are attending or would like to meet up while she is at the Congress, drop her a line at ekadelburger@underwoodco.com