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How will the trade union right of access impact employers?

Fri, 22 May 2026 00:00:00 +0100

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How will the trade union right of access impact employers?

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The government has published its response to the consultation on the right of trade unions to access workplaces, a measure under the Employment Rights Act 2025 which is due to be brought into force in October 2026.

Published: 22 May 2026
Author: Jonathan Naylor

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Much of the detail will be set out in implementing regulations although the government has also published a Draft Code of Practice: Right of Trade Unions to Access Workplaces, to provide practical guidance on how the right of access will operate, which includes a template request form and response form.

What does the right of access entail?

The measure will enable independent trade unions and employers to enter into access agreements which allow union officials to access the employer’s workers, both digitally or physically in the workplace, for the purposes of meeting, representing, recruiting or organising workers, or facilitating collective bargaining. Importantly, the right does not cover access with the purpose of organising industrial action.

How will this work in practice?

Where a union is seeking access to workers, and access cannot be agreed on a voluntary basis, the union will present an access request to the employer. The employer may issue a response notice within the response period, which is proposed to be 15 working days unless an extension is agreed, either accepting or rejecting the request.

If the employer accepts the request, there is then a negotiation period of 25 working days in which the union and employer can seek to agree written terms governing the access.

If the employer fails to respond, or if negotiations are unsuccessful, the union can apply to the Central Arbitration Committee (CAC) within a 55 working day period, commencing from the date of the original request. The CAC can then determine whether to grant access and on what terms.

Once any access agreement is in place, the trade union would need to give a minimum of five working days’ notice before the first site visit. Thereafter only two working days’ notice would be required before each access visit. Access on an up to weekly basis will be provided for in the template agreement but, whilst this is considered best practice, unions are free to apply for the frequency of access best suited to their needs.

Regulations will set out the right of access in more detail, such as providing that access requests and responses must be made in writing, with supporting guidance stating that these steps are preferably done by email. The Code, meanwhile, gives guidance on where and when access can take place, what workplace facilities should be available and what consent is required for digital access.

The government has accepted that access agreements should not be granted by the CAC without an expiry date, which will be a maximum of two years from the point they come into force, unless the parties agree and apply for an extension.

What if an employer does not recognise a union?

The right of access is not limited to recognised trade unions, and therefore any employer could be faced with an access request once the measure becomes law.

Interestingly, where two or more trade unions make a joint application for access to a workplace, the draft Code says they should act together in preparing and implementing the access agreements. It is therefore anticipated that more than one union might have access where they access different groups of workers.

Are there any circumstances in which access will not be granted?

The government has confirmed that it will exempt employers with fewer than 21 workers from the right of access.

There will also be a small number of situations in which access must be refused, for example where granting access would be contrary to the interests of national security or where access would prejudice the detection or investigation of offences.

The presence of a recognised union representing one or more of the workers the union is seeking access to may also constitute a reasonable basis for an employer and the CAC to refuse access, although this is not an absolute rule. It may also be reasonable to refuse access where there is an ongoing statutory recognition process concerning one or more of the workers the union is seeking access to or where a statutory access agreement with an independent union is already in place.

What does an employer have to do once access is granted?

The employer is expected to take reasonable steps to facilitate access, but does not have to make significant, structural, technological or operational changes just for that purpose. Access should be supported using existing facilities and systems. If an access application would require excessive resource allocation, this could be another basis on which the CAC refuse the request.

What if the access agreement is not followed?

The government expects parties to try and resolve differences between themselves, although there is scope to raise a complaint to the CAC. Where a complaint is upheld, the CAC will be able to issue penalties with maximum limits of:

up to £75,000 for a first penalty
up to £150,000 for a second penalty
up to £500,000 fine for the third breach and subsequent non-compliance under the same access agreement

Regulations will set out the factors that the CAC should consider when setting the level of fine.

What can employers do now to prepare for this change?

consider existing arrangements with any recognised trade union and how these might need to be updated to include a right of access
if there is no union currently recognised, consider recognition on a voluntary basis with a preferred union

assess what facilities are available to support union access and what restrictions might be required, for instance, to comply with safeguarding or health and safety requirements.

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Shifting landscape: Employment insights from the 2026 Litigation Risk Report

Wed, 20 May 2026 00:00:00 +0100

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Shifting landscape

Employment insights from the 2026 Litigation Risk Report

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This article explores the employment related findings of the 2026 Litigation Risk Report and considers what they mean in practice for employers and HR professionals as we enter a period of significant change.

Published: 20 May 2026
Author: Phil Crowe & Rachel Taylor

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Shoosmiths’ 2026 Litigation Risk Report provides valuable insight into how disputes are evolving, where organisations are most exposed, and which emerging themes HR teams should have on their radar. Drawing on the perspectives of more than 360 general counsel and senior in-house lawyers across the UK, the report highlights a rapidly shifting landscape shaped by legislative reform, data-driven disputes and the growing influence of artificial intelligence (AI).

This article explores the employment related findings of the 2026 report and considers what they mean in practice for employers and HR professionals as we enter a period of significant change.

Employment disputes: Trends and what lies ahead

The report notes a slight reduction in employment disputes compared with the previous year. However, this position is not expected to continue. With the implementation of the Employment Rights Act 2025 (the ERA), disputes are anticipated to increase significantly over the coming years. Historically, an expansion of workers’ rights has been accompanied by a corresponding rise in Employment Tribunal claims, and the ERA introduces a number of changes that are likely to materially increase employers’ litigation risk exposure.

One of the most significant changes will be the extension of the limitation period for most Employment Tribunal claims, from three months to six months, giving employees more time to reflect, seek advice and decide whether to pursue a claim. This change is expected to take effect on 1 October 2026.

Further significant changes which have been confirmed will take effect from 1 January 2027, include:

a reduction in the qualifying period to bring an unfair dismissal claim
the removal of the compensation cap for unfair dismissal.

Although unfair dismissal will not become a day-one right, these reforms represent a marked shift. Around 6.3 million employees currently fall within the six-month to two-year service bracket and currently have limited protection against unfair dismissal. From 2027, employees with just six months’ service will be able to bring unfair dismissal claims.

As a result, robust recruitment processes, effective probation management and early-stage performance management will become even more critical.

Data subject access requests as a litigation tool

The report highlights the growing use of data subject access requests (DSARs) in employment disputes. Employees are increasingly using DSARs to obtain material to support claims or to increase the cost and complexity of defending proceedings.

AI is also making it easier for individuals to generate lengthy and complex DSARs, significantly increasing the time and cost burden on organisations. As a result, disputes are becoming more resource-intensive, underlining the importance of having robust processes in place to meet statutory timescales and to make sure responses are compliant.

AI‑related employment disputes: the top litigation risk

AI-related litigation risk has emerged as the most significant concern for respondents to the report, overtaking both intellectual property and breach of contract claims. More than half of respondents to the report expect AI-related disputes to increase.

AI‑generated employment claims: Claimants are already using AI tools to draft Employment Tribunal claims, correspondence and even witness statements. While these documents are often lengthy and follow similar structures, they do not always clearly articulate the legal basis of the claim, making them time-consuming and costly for employers to assess and respond to
restrictions on workplace AI use: The report reveals that 43% of respondents have introduced restrictions on AI use in the workplace, highlighting how prominent these risks have become. Clear policies, supported by targeted training, are essential to ensure employees understand not only what AI can be used for, but also its limitations and prohibited use
discrimination risks from automated decision‑making: AI systems can unintentionally replicate or amplify bias, particularly where they are trained on biased datasets. Where automated tools disadvantage certain groups or produce inconsistent outcomes, employers may face claims under equality legislation. These risks are expected to increase over the next three years.

While AI can offer significant opportunities for efficiency and innovation, these benefits must be carefully balanced against the growing employment and litigation risks associated with its use.

Managing AI-related employment risk

Effective AI risk management starts with understanding how AI is being used across the organisation. Clear training, supported by practical AI policies is essential to ensure employees understand acceptable use and associated risks.

Regular auditing of AI outputs is also a critical risk‑mitigation tool, helping organisations identify emerging issues and unintended consequences at an early stage. Ongoing testing to detect and address potential bias remains an essential part of responsible AI use in the employment context.

From a data protection perspective, employers must ensure they have a lawful basis for processing personal data, understand how AI tools operate and are transparent about the use of AI in relevant workplace processes.

Managing litigation risk: practical steps from the report

The report identifies several ways organisations are seeking to reduce exposure.

One notable development is the restriction on WhatsApp for work-related communications. One in four organisations has taken this step, rising to 42% in the financial services sector. WhatsApp messages frequently feature in Employment Tribunal proceedings, and the lack of oversight can present a real risk. Whether this approach is workable will depend on sector and workforce structure. While alternatives like Microsoft Teams may suit employers in the financial services sector, WhatsApp messaging can be harder to replace in sectors such as retail or automotive.

Another key strategy is targeted training for managers. Line managers are often making day-to-day decisions that later come under legal scrutiny. Providing early and practical guidance can materially reduce the risk of disputes.

Organisations are also encouraged to:

regularly review policies and procedures
conduct litigation preparedness reviews to identify areas of exposure
review AI governance and internal controls to ensure AI is used appropriately.

Conclusion

Our 2026 Litigation Risk Report makes clear that employment litigation risk is evolving rapidly. Employers that take early action by strengthening policies, upskilling managers, improving documentation and implementing clear AI governance will be better placed to navigate an increasingly complex litigation landscape.

You can download a copy of the report here: Litigation Risk Report 2026.

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Valuing reality: What Dyer means for business rates & fit-out

Tue, 19 May 2026 00:00:00 +0100

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Valuing reality: What Dyer means for business rates & fit-out

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In a recent Upper Tribunal decision, commercial occupiers have been reminded that business rates do not exist in a vacuum.

Published: 19 May 2026
Author: Sophie Tracey

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Where offices have moved beyond a basic Cat A fit‑out to a more bespoke Cat B configuration, rateable value should reflect the physical reality of that enhanced hereditament.

Fit‑out decisions, dilapidation strategies and occupation profiles can therefore all have unintended rating consequences – meaning that occupiers need to take early advice on the knock-on effects of customisation of their premises.

How is rateable value calculated?

Rateable value (RV) is an estimate of the annual rent a ‘hereditament’ (essentially, a unit of property) could achieve on the open market.

It is a hypothetical rental value, assessed by reference to the antecedent valuation date (AVD), but reflecting the physical state of the property and any relevant circumstances on the ‘material day’. For properties entered onto the ratings list after the AVD, the material day is typically the date they were entered – meaning that strong comparative evidence is crucial to the exercise.

In the Upper Tribunal’s recent decision on appeals by two valuation officers (considered together and known as Re Dyer and Re Johnson), the relevant premises were occupied on the material day and were therefore valued including the sitting tenant’s fit out, known as ‘Cat B’ condition.

How does tenant’s fit out affect the RV of its premises?

As highlighted in Re Dyer, most lettings in the office market are actually of properties in Cat A condition (i.e. a standard developer or landlord’s shell or standard fit-out). These lettings are therefore of limited use to valuers, but direct Cat B comparables are themselves limited.

The starting point is therefore often Cat A rental evidence, ‘toned’ by adding an uplift to reflect the value of the element of the Cat B fit out that would have general market appeal. In Bunyan v Acenden [2023], for example, this was assessed at 4.4% of the capital amount of expenditure. However, where the tenant’s fit out is overly bespoke, this can instead depress values.

In Re Johnson, the primary evidence came from sub-lettings between law firms, where the expected fit out was relatively consistent across occupiers.

Key considerations for occupiers

1. Plan early

The 1 April 2026 revaluation has reset RVs across England and Wales, based on a new AVD of 1 April 2021. The result is sector- and location-specific shifts, with some occupiers seeing significant movement. The introduction of more permanent reliefs/multipliers (particularly in retail, hospitality and leisure) has also altered the landscape, making forward planning essential.

2. Do your due diligence

There is evidence both in the property and national press that the new list has not been implemented consistently, with errors in RVs, multipliers and reliefs. It is well worth your time checking rateable value, factual accuracy for the property e.g. floor area, use and layout, and whether correct multiplier and reliefs have been applied.

3. Check, challenge, appeal

The system for challenging rates valuations first requires you to raise a ‘check case’ and then ‘challenge’ via the Valuation Office’s electronic portal. This can then be appealed if you still disagree with the challenge decision (within four months of the date of the decision), or if you have not had a reply within 18 months.

In another Upper Tribunal appeal, Caffe Concerto v Johnson [2026], the VTE confirmed its discretion to extend appeal deadlines, applying the Denton principles – but this should not be relied on, and deadlines remain critical.

4. Factor rating into fit-out and works

Physical changes to property such as tenant fit-out can increase RV where it adds value, but landlord works or contributions may also have unintended rating consequences. Occupiers should therefore price rating risk into fit-out decisions and negotiations.

In the Hitchings appeals [2025], the Tribunal was reluctant to determine whether a landlord’s contribution to a Cat B fit out should be preferred over the actual cost of the fit out.

Instead, whilst there is no automatic ‘strip back to Cat A’ rule, the Tribunal must look at the actual physical state of the property and its utility in the market.

5. Evidence is king

As highlighted in Re Dyer, the Tribunal is often dealing with “less than helpful” evidence, particularly given the scarcity of Cat B comparables (described in one case as “virtually impossible to come by”).

The Tribunal will engage closely with hard factual evidence of the condition of the hereditament, not general market narratives. Floorplans, photos, specifications and evidence of actual works carried out can all be decisive.

Where necessary, an application to the Tribunal for an order for disclosure or a witness summons could encourage production of better evidence.

6. Remember it’s not all about works

Changes in mode or category of use of the property can also trigger revaluation.

Remember too that certain tenancy arrangements will be subject to more scrutiny than others – there are known issues with valuing flex or serviced office space either per individual tenant or as a single office space, for example – so be alive to potential issues. Once a valuation ‘tone’ is established, the Tribunal may seek to prioritise consistency across the list rather than seeking to arrive at the ‘perfect’ number.

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Renters’ Rights Act reset: What landlords can no longer ignore

Fri, 15 May 2026 00:00:00 +0100

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Renters’ Rights Act reset: What landlords can no longer ignore

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Following the abolition of “no fault” evictions on 1 May 2026, the Court of Appeal’s decision in Muca v El Amrani has thrown doubt on the validity of existing section 21 notices.

Published: 15 May 2026
Author: Simon Foster

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Following the rush to serve section 21 notices ahead of the abolition of “no‑fault” evictions on 1 May 2026, many landlords will have been breathing a sigh of relief and hoping they had successfully navigated the transition to the new Renters’ Rights Act regime of open‑ended periodic tenancies and reformed rent review procedures.

However, the Court of Appeal’s decision in Muca v El Amrani – handed down on the eve of section 21’s abolition – has thrown a significant complication into that assessment.

The legal background

To serve a valid notice under section 21 of the Housing Act 1988, a landlord needed to have complied with certain prescribed requirements. One of these is the gas safety obligation: the landlord must provide the tenant with a valid gas safety certificate (GSC) before the tenant first goes into occupation, and again after each subsequent inspection.

Until recently, uncertainty remained over whether a failure to provide the initial GSC could be remedied later.

The Court of Appeal’s decision

The Court of Appeal has now confirmed that failure to provide a GSC before the start of the tenancy is an irremediable breach. Where that requirement has not been met, the landlord can never serve a valid section 21 notice in respect of the tenancy.

The court made it clear that late service of the GSC does not cure the breach. Even where all subsequent certificates are provided, section 21 cannot be relied upon to recover possession.

This settles a long‑standing divergence of approach in the lower courts and brings much‑needed clarity – albeit with significant consequences for affected landlords.

Why this still matters

Although section 21 notices can no longer be served, existing notices served before 1 May 2026 may still be relied upon, provided proceedings are issued by 31 July 2026 under the transitional arrangements – and provided that the notice is valid.

Muca v El Amrani is therefore critical when assessing the viability of any ongoing or contemplated claims based on historic section 21 notices. Where the initial gas safety certificate was not provided before occupation, those claims are vulnerable to being struck out.

In such cases and following the changes brought in by the Act, landlords will be required to start again by serving a section 8 notice, specifying statutory grounds for possession. This inevitably carries greater evidential burden, cost and delay.

Ongoing compliance under the new regime

While serving new s.21 notices will no longer be possible, gas safety obligations remain firmly in place.

Under the new regime, landlords must ensure all new tenants are informed of their gas safety obligations through the Written Statement of Terms (whether incorporated into the tenancy agreement or provided as a standalone document), including the requirement to provide copies of gas safety records. These obligations are also expected to feed into the forthcoming landlord database requirements.

In the meantime, it is crucial that all landlords remember their first obligation under the new regime – to serve Information Sheets on their existing tenants by no later than 31 May 2026. Landlords of student accommodation should double-diarise this date if they intend to rely on the transitional provisions of the Act and regain possession this summer, as the deadline to serve a warning notice of their intention to rely on Ground 4A is also 31 May 2026.

Next steps

Landlords (and their advisers) should carefully review any live section 21 notices and related proceedings to ensure they remain legally sound in light of Muca v El Amrani.

If you would like assistance reviewing existing notices or understanding the possession options now available under the Renters’ Rights Act regime, please contact Simon Foster, who leads Shoosmiths’ specialist residential possession team.

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When freedom of expression bites back: Injunctions & actionable threats in Bargain Busting v Shenzhen SKE Technology Company

Wed, 13 May 2026 00:00:00 +0100

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When freedom of expression bites back

Injunctions & actionable threats in Bargain Busting v Shenzhen SKE Technology Company

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Decision: Bargain Busting v Shenzhen SKE Technology Company [2026] EWCA Civ 532
Court: Court of Appeal (Civil Division)
Judges: Arnold LJ; Laing LJ; Warby LJ
Decision: Here
Key issues:

actionable threats
interim injunctions
Human Rights Act 1998

Published: 20 May 2026
Authors: Ellen Hughes-Jones

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Introduction

How hard is it to stop a trade mark owner from writing to the market? In Bargain Busting v Shenzhen SKE Technology, the Court of Appeal set aside an interim injunction that had restrained Bargain Busting from making alleged actionable threats to Shenzhen SKE Technology Company’s (SKE) supply chain. The key reason: where an injunction would restrain speech before trial, section 12(3) of the Human Rights Act 1998 applies a heightened merits threshold and the first‑instance judge had not applied it.

Background

Bargain Busting owns UK trade marks including CRYSTAL BAR, CRYSTAL CLEAR VAPOURS ELECTRONICS CIGARETTES, and CRYSTAL ADDICT (figurative) in class 34, covering (among other things) electronic cigarettes. SKE has challenged the validity of some of these marks via opposition and/or revocation proceedings.

On 18 September 2024, Bargain Busting issued infringement proceedings against SKE, alleging that SKE’s use of signs containing the word CRYSTAL (the CRYSTAL Signs) on vape products infringed its trade marks. Then, on 23 and 24 December 2024, Bargain Busting’s solicitors wrote to eleven of SKE’s distributors, wholesalers and/or retailers. The letters said Bargain Busting considered the use of the CRYSTAL Signs to be infringing and explained that Bargain Busting intended to apply to add those recipients as defendants in the main claim.

That kind of correspondence matters because sections 21A–21F of the Trade Marks Act 1994 create a cause of action for actionable (or unjustified) threats. A person aggrieved by threats of trade mark infringement can seek a declaration that the threats are unjustified, an injunction to stop them, and damages for any loss. The policy aim is to prevent rights holders from pressuring a competitor’s customers (sometimes with immediate commercial impact) without having to put their infringement case before the court. It was common ground between the parties that whether the letters were “justified” would depend (at least in part) on the validity of the marks relied on.

SKE applied on 21 January 2025 for an interim injunction to restrain further alleged actionable threats, which came before the court on 30 April. In response to the application, Bargain Busting invoked section 12 of the Human Rights Act 1998, which restricts the grant of pre‑trial relief that would restrain publication (and so engages freedom of expression):

“(1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression.

…

(3) No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.

…”

At first instance, the judge held that the correct approach applying section 12(3) was as follows:

“… it appears to me that applications for injunctions in respect of allegedly unjustified threats will often fall within the exceptional category of cases identified by Lord Nicholls in Cream Holdings. The key question as far as the merits threshold is concerned is whether the court is satisfied the applicant’s prospects of success at the trial are sufficiently favourable to justify such an order being made in the particular circumstances of the case. To require the higher threshold to be met in all such cases would to my mind undermine the protection intended by Parliament in enacting the unjustified threats provisions. A party may need to move quickly to seek such an injunction as losses can be rapid as the market is cleared. It would to my mind generally place too high a barrier in the way of applicants in such cases to require them to show that they will probably win at trial.”

On the (necessarily limited) evidence available at the interim stage, the judge assessed SKE’s prospects on the relevant marks as follows:

CRYSTAL BAR: “While SKE was able to show a serious issue to be tried, I cannot conclude on the limited materials before me on this application that SKE has “a better than evens chance of success” on its section 5(4)(b) case” and “SKE has established no more than a standard serious issue to be tried” on its section 3(6) case;
CRYSTAL CLEAR VAPOURS ELECTRONICS CIGARETTES: The judge was “satisfied that SKE has a realistically arguable case [of non‑use], which may well succeed at trial”; and
CRYSTAL ADDICT (figurative): The judge could “conclude no more than that there is at least a serious issue to be tried in relation to it”.

Pulling those strands together, the judge held that, so far as section 12(3) was concerned, SKE’s prospects were “sufficiently favourable to justify” making the order in the circumstances. He therefore granted an interim injunction restraining Bargain Busting from making further threats.

Appeal

Bargain Busting appealed, arguing that the judge had applied the wrong legal test. Relying on Cream Holdings Ltd v Banerjee [2004] UKHL 44, it said that section 12(3) ordinarily requires the claimant to show it is more likely than not to succeed at trial before the court restrains publication.

Arnold LJ (with whom Laing LJ and Warby LJ agreed) accepted that submission. The Court of Appeal held that the first‑instance judge had not applied the general rule in Cream Holdings. In particular, because the judge had not found that SKE’s threats claim was more likely than not to succeed (and there was no respondent’s notice inviting the Court to uphold the injunction on that basis) the injunction could not stand. The interim restraint was therefore overturned.

Comment

The judgment makes clear that section 12(3) is not a mere ‘gloss’ and, if the relief sought would restrain publication (including letters to the trade), the court must grapple with the section and the merits threshold.

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When contempt goes too far: Strike-out in Bargain Busting v Shenzhen SKE

Wed, 13 May 2026 00:00:00 +0100

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When contempt goes too far

Strike-out in Bargain Busting v Shenzhen SKE

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Decision: Bargain Busting v Shenzhen SKE Technology Company & Others [2026] EWHC 933 (Ch)
Court: High Court of England and Wales
Judge: HHJ Matthews
Decision: Here
Key issues: Contempt of court

Published: 13 May 2026
Authors: Shojibur Rahman

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Introduction

In Bargain Busting v Shenzhen SKE Technology, HHJ Matthews struck out an application for criminal contempt, an emphatic reminder that contempt is an exceptional jurisdiction, not a routine litigation tactic. The judgment is a helpful read for anyone contemplating criminal contempt proceedings: the court will look for a genuine, realistic risk to the administration of justice, not sharp correspondence or robust submissions.

Background

On 10 May 2022, Bargain Busting applied to register the trade mark CRYSTAL BAR for class 34 goods (including electronic cigarettes and vape bars). Shenzhen SKE Technology opposed the application at the UK Intellectual Property Office under section 5(4)(a) of the Trade Marks Act 1994, but the Hearing Officer rejected the opposition and the application was allowed to proceed.

Shenzhen SKE Technology then appealed to the High Court, but the appeal was dismissed. The parties subsequently agreed a form of order on 7 July 2025 requiring the mark to proceed to registration, while preserving Shenzhen SKE Technology’s right to seek permission to appeal to the Court of Appeal by 25 July 2025.

The next step sparked the dispute. On 14 July 2025, the UK Intellectual Property Office asked the parties for an update on the High Court appeal. Bargain Busting supplied the order (copying Shenzhen SKE Technology), and a short exchange followed with the UKIPO. A précis is set out below:

14 July (from Shenzhen SKE Technology’s lawyers): “… Please kindly note that the judge’s order … includes a deadline of 25 July 2025 to apply to the Court of Appeal for permission to appeal … We therefore respectfully request that no registry updates are effected at present …”
14 July (from Bargain Busting’s lawyers): “The order has immediate effect and applying for permission to appeal does not stay the order.”
17 July 2025 (from Shenzhen SKE Technology’s lawyers): “… we respectfully disagree. Our client presently intends to appeal the Order to which Brandsmiths refer … Consequently, … CRYSTAL BAR should not be registered until after either permission to appeal is refused, or, if it is granted, the final determination of any appeal … Allowing … CRYSTAL BAR to be registered effectively deprives the parties’ legal rights to appeal under paragraph 4 of the court order … The UKIPO is under a public duty to maintain the register of trade marks ensuring they are as accurate as possible. Should the UKIPO proceed to register this mark but later the court decides that the mark should not be registered and the UKIPO has to cancel the registration, it will be wasting the UKIPO’s time. Innocent third parties who rely on the UKIPO’ register during that period may also be misled by the status of … CRYSTAL BAR …”
24 July (from Bargain Busting’s lawyers): “The wording of the Order was agreed by the parties in advance of it being finalised and handed down by the High Court. If SKE … wanted the registration of the mark to be dependent or contingent ‘until after eitherpermission to appeal is refused, or, if it is granted, the final determination of any appeal’, they should have made this clear at the appropriate time and suggested amendments to the wording of the Order to be agreed and finalised in advance of it being handed down, but this did not happen. Paragraph 2 of the Order states that ‘[CRYSTAL BAR] shall proceed to registration’ … an appeal does not operate as a stay … we are extremely concerned that [Shenzhen SKE Technology’s lawyers are] attempting to mislead the Tribunal and interfere with the due administration of justice by seeking to call into question a mandatory Order from a High Court judge …”

Bargain Busting subsequently issued an application for criminal contempt (alleging intentional interference with the administration of justice) against Shenzhen SKE Technology and its lawyers. It also warned the UK Intellectual Property Office that High Court proceedings would follow if the mark was not registered by 16:00 on 27 August 2025. The UK Intellectual Property Office did not register the mark, but instead listed a hearing before Dr James Porter (Chief Hearing Officer) on 12 September 2025. Given the contempt allegations, Shenzhen SKE Technology and its lawyers attended that hearing but made no representations. In parallel, Shenzhen SKE Technology sought permission to appeal and applied to vary the High Court order to secure a stay pending any appeal.

In his decision, the Hearing Officer noted that Shenzhen SKE Technology’s request (to leave the register unchanged until all routes of appeal were exhausted) was common before the UK Intellectual Property Office (it arising from the long standing practice in Planet Epos v. Nettec Solutions BL O/373/02). He also noted that the Trade Marks Manual, while not binding, indicated that the Planet Epos applies to all levels of appeal, including to the Court of Appeal. However, he noted that, in practice, the specific issue had not been addressed (either because the High Court order expressly provides for a stay or because the parties adopt a pragmatic approach, waiting until all routes of appeal are exhausted). He then concluded:

“It is clearly unsatisfactory for rights to come on and off the register, leaving third parties and the wider public in a position of considerable uncertainty. Having rights appear and disappear (or vice versa) may raise significant questions over the status of infringing acts, and third party terms may be needed to regularise the position of parties. It may also lead to considerable uncertainty in proceedings where the existence of earlier registered rights is relied upon.

However, despite the practical concerns, I conclude that POINT FOUR does not establish that the Registrar can leave the register unchanged in light of a court order.”

Shenzhen SKE Technology then applied to strike out the contempt allegations. That application came before HHJ Matthews.

Decision

HHJ Matthews drew on (among other authorities) BHP Group (UK) Limited v Municipio de Mariana [2026] EWCA Civ 294, which distilled eight principles governing criminal contempt. Against that framework, he made the following findings:

requests are not “misstatements”: Much of the relied-upon conduct was framed as requests or submissions, not statements of fact. A request that a public body take (or refrain from taking) a step cannot, in itself, be false or misleading in the way required for contempt.
no realistic risk of interference: The UKIPO alone controlled whether the mark would be registered. It was aware of the legal position and could not be compelled by the parties, so the respondents’ conduct could not affect (or realistically risk affecting) the outcome.
aligned with longstanding UKIPO practice: The representations sat comfortably with the UKIPO’s established approach of pausing implementation pending appeals, making it harder to characterise the conduct as improper.
robust arguments are not contempt: Parties are entitled to advance submissions about how the law applies. The fact an argument is rejected does not make it improper, still less contemptuous.
public interest threshold not met: Criminal contempt protects the public interest in the administration of justice, not private litigation advantage. The court saw no evidence of an intention to interfere with justice, and the threshold was not approached.

On that basis, he struck out the contempt application: the pleaded conduct did not meet the legal threshold for criminal contempt, there was no real risk to the administration of justice, and the claim disclosed no reasonable grounds.

Comment

In striking out the application, HHJ Matthews also stepped back to make broader, timely observations about how contempt is being used in modern litigation:

“What has happened in this case is nowadays an increasing problem for the courts. The courts now see even small (alleged) breaches of any orders, not necessarily injunctions, and indeed the conduct of litigation more generally, being threatened with contempt proceedings. In the old days, there would simply have been an application to enforce the original order. As one might expect, and as has happened here, such proceedings being launched are then often followed by applications from the respondents to strike out those proceedings. This slows down the litigation and consumes a lot of time and money. It is trite to say that the contempt jurisdiction is being ‘weaponised’ in a way that it has not been before. Certainly, I do not recall anything of this kind when I first started to practise law in the 1980s. Contempt applications were rare beasts, reserved for serious cases of non-compliance with injunctions or orders for specific performance, or for serious disruption of court hearings and interference with juries.

I appreciate that the contempt jurisdiction may be viewed by some litigators today as just another stick to beat your opponent with: the old adage is transmuted for modern times to All’s fair in love and litigation. In some cases, too, it may also be seen as a marketing tool for professionals, whether lawyers or others, to show how strong and fearless they are, and how committed they are to their clients’ cases. But in my judgment these are notfunctions of the contempt jurisdiction at all. Worse, and as I have said, its misuse consumes valuable judicial and legal resources, and costs a great deal of money. And this cannot help but prejudice other litigants seeking to have their disputes settled sooner rather than later. This is an unnecessary burden on society. In my judgment, the contempt jurisdiction should be exercised only where it is properly justified, and the courts should be vigilant to see that its exercise is so confined.”

The takeaway is simple but important: contempt is for serious misconduct that poses a real risk to the administration of justice. If the complaint is really about how an order should be implemented (or whether a step should be paused pending appeal) the court will expect parties to use the ordinary procedural tools, not the criminal contempt jurisdiction.

Addendum

Subsequent to the successful application for strike out, HHJ Matthews considered Shenzhen SKE’s costs (which were £296,099.61 plus applicable taxes) and permission to appeal.

He concluded that Bargain Busting should pay the costs on an indemnity basis, with an interim payment to be made of £215,000. The costs are to be the subject of a detailed costs assessment. He noted:

“In my judgment, whether or not these various factors would each individually justify an award of costs on the indemnity basis, I am quite satisfied that, taken together, they do so overwhelmingly. The claimant made very serious allegations against the defendants, and lost. It was wrong and out of the norm for the claimant’s solicitors opportunistically to seek to use criminal contempt proceedings, in which the touchstone is the public interest in the administration of justice, in order to pursue their client’s private interests. It was wrong and out of the norm for the claimant’s solicitors to threaten the defendants with being reported to the SRA in order to persuade them to agree to their client’s terms. The claimant must pay the defendants’ costs on the indemnity basis.”

Permission to appeal was refused.

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Late Payments Bill: A reset for small business payment culture

Wed, 13 May 2026 00:00:00 +0100

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Late Payments Bill: A reset for small business payment culture

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New legislation will cap payment terms, mandate interest and strengthen enforcement—reshaping UK payment practices and rebalancing power in supply chains.

Published: 13 May 2026
Author: Michelle Craven-Faulkner

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Following on from our recent commentary on this topic the inclusion of the Small Business Protections (Late Payments) Bill in the King’s Speech signals a decisive shift in how payment practices will be regulated in the UK. Moving beyond incremental reform, the proposed regime introduces enforceable constraints on payment terms, backed by financial penalties and regulatory oversight.

For many businesses, the significance of the Bill lies not in the headline measures themselves, but in the operational and legal implications that follow: a fundamental recalibration of contracting models, cashflow management and dispute processes across supply chains.

From contractual freedom to statutory constraint

The proposed 60‑day cap on payment terms and mandatory statutory interest are well understood headline measures. Their real significance lies in the removal of commercial flexibility: payment terms will no longer operate as a negotiable lever, but as a regulated constraint with direct financial consequences.

Coupled with this is the move to make statutory interest on late payments mandatory and non-waivable, set at 8% above the Bank of England base rate. This is a subtle but important shift. The existing statutory framework has long permitted interest claims, but the ability to contract out of those rights has meant they are rarely exercised. By removing that discretion, the Government is effectively hard-wiring financial consequences into late payment itself.

In practice, this represents the emergence of a new form of economic regulation within B2B contracting. Payment behaviour—historically treated as a matter of commercial discretion—will instead be subject to oversight, enforcement and sanction.

Enforcement: From reputation to regulation

Historically, enforcement in this space has relied heavily on transparency and reputational pressure. The strengthened role of the Small Business Commissioner (SBC) marks a departure from that model. Under the proposed regime, the SBC will be equipped with powers to investigate, adjudicate disputes and, critically, impose substantial financial penalties on persistent offenders.

This is not merely an enhancement of an existing office; it represents the emergence of a new economic regulator in all but name. The implication for large corporates is clear: payment practices will no longer be an internal operational matter but a potential source of regulatory risk, with board-level visibility and consequence.

The proposed 30‑day deadline for raising invoice disputes reinforces this shift further. It targets a familiar tactical delay mechanism—late-stage disputes raised to defer payment—and replaces it with a more disciplined framework. In doing so, it pushes organisations toward tighter internal controls and faster decision-making around invoice validation.

Sectoral impact and supply chain dynamics

The impact will be particularly acute in those contractual environments where layered supply chains and milestone-based payments are common. In these sectors, the interaction between statutory payment obligations and existing contractual mechanisms (including retention and certification processes) is likely to generate both legal uncertainty and increased dispute risk.

More broadly, the reforms are likely to have a profound impact on supply chain dynamics. For SMEs, improved payment certainty should enhance liquidity, reduce reliance on external financing and support growth. For larger organisations, however, the cumulative effect—shorter payment cycles, mandatory interest exposure, and regulatory oversight—will require a fundamental recalibration of working capital management.

A cultural inflection point?

The central question is whether legislation can achieve what decades of voluntary codes and incremental reform have not: a genuine shift in payment culture. There are reasons to think this time may be different. The combination of hard legal obligations, financial penalties, and active enforcement creates a framework that is far more difficult to ignore.

That said, the success of the regime will depend on how it is implemented and enforced in practice. There will inevitably be areas of tension—particularly in complex supply chains where payment is linked to performance milestones or dispute resolution mechanisms. Careful drafting of secondary legislation and guidance will be critical to ensure that the regime is both robust and workable.

Looking ahead

For many organisations, the more immediate challenge will be operational:

standard terms will require revision, particularly where extended payment periods are embedded across group contracts
invoice validation processes must accelerate to meet compressed dispute windows
working capital assumptions will need reassessment, particularly in sectors reliant on extended payment cycles
governance and reporting structures may require uplift, given the increased visibility of payment practices.

The significance of the Small Business Protections Bill lies not simply in its individual measures, but in what it represents: a shift from a culture of negotiated payment practices to one of enforceable standards. For businesses, the key question is no longer whether payment terms are commercially acceptable, but whether they are legally sustainable in a more regulated environment.

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Shoospeak HR: The diversity conversation progress, challenges and the future of data centres

Wed, 13 May 2026 00:00:00 +0100

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Podcast | 40 min listen

Shoospeak HR

The diversity conversation progress, challenges and the future of data centres

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The employment team are back with another episode of Shoospeak HR.

Published: 13 May 2026

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In this episode of the Shoospeak HR podcast series on diversity, equity and inclusion, Legal Director, Charlotte Staples speaks with Charlotte Berry-Sellwood, Chief Delivery Officer at AVK-SEG and a leading voice in the data centre sector. Charlotte shares her career journey from engineer to senior executive, offering candid insights into the fast-paced evolution of the industry and the scale of its growth.

The conversation explores the realities of building a career in a traditionally male-dominated sector, the importance of making your voice heard, and the role of diverse perspectives in driving better business outcomes. Charlotte also reflects on the current state of DEI in data centres, highlighting both the progress made and the challenges that remain, including talent shortages, the need for better industry visibility, and the importance of sustained leadership commitment.

With a strong focus on mentorship and advocacy, Charlotte discusses initiatives such as the Forum for Women in Data Centres and the importance of creating inclusive environments where individuals can thrive. The episode closes with practical advice for those considering a career in the sector and a powerful call to action for businesses to embrace diversity as a driver of long-term success.

https://www.podbean.com/ep/pb-fbetb-1ac516f

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Royal Assent signals a reset for salary sacrifice pensions

Wed, 13 May 2026 00:00:00 +0100

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Article | 2 min read

Royal Assent signals a reset for salary sacrifice pensions

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On 29 April 2026, The National Insurance Contributions (Employer Pensions Contributions) Act 2026 (the Act) received Royal Assent. The Act places a cap on the amount of pension contributions made via salary sacrifice that will be exempt from national insurance contributions.

Published: 13 May 2026
Author: Rhiannon Barnsley-Bloomfield

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What is salary sacrifice?

Salary sacrifice is a formal arrangement where an employee agrees to give up (i.e. sacrifice) a portion of their gross salary in exchange for a non-cash benefit from their employer (such as increased pension contributions). This is achieved by changing the employee’s contractual terms and conditions.

In addition to their standard employer pension contribution (which is not subject to National Insurance contributions (NICs), an employer pays the salary that has been sacrificed by an employee directly into the pension scheme. It is considered a tax-efficient way of contributing to a pension scheme as the employers pay less NICs because the employee’s gross salary is lowered. It also reduces income tax and employee NICs for the employee. Some employers pass on the NICs saved by paying some or all of the savings as increased pension contributions.

What is the background to the changes?

On 26 November 2025, the government announced at the Autumn Budget 2025 that from 6 April 2029, employee pension contributions exceeding £2,000 per annum made using salary sacrifice arrangements will be subject to NICs. The change aims “to increase fairness, while protecting ordinary workers” as the cap “makes the system fairer and more sustainable”.

Pension contributions will remain exempt from income tax, subject to the usual limits. Pension contributions made via other methods will also be unaffected.

The government has published guidance on the changes and is expected to publish further guidance before April 2029.

What is changing?

Salary sacrifice arrangements are commonly utilised for pensions and employers and employees will still be able to make use of them after April 2029, although the tax advantage of doing so will not be as significant. Employees will still be able to choose to sacrifice salary to contribute to their pension, however, any amount sacrificed in excess of £2,000 per year, will be subject to NICs (both employer and employee NICs).

Where an employer currently pays some or all of the NICs saving back into the employee’s pension, the fact that the NICs saving will be reduced could result in a reduced payment into the pension scheme for the employee or an additional cost to the employer if the payments are maintained. All employer pension contributions will continue to be free of NICs.

Employees will not need to contact HMRC themselves if the amount of salary sacrificed for pension contributions is in excess of £2,000 as it is expected that employers will make the necessary changes to ensure NICs are paid.

Key takeaways

The changes don’t come into force until 6 April 2029, and so there is no immediate action needed as much of the detail of how the cap will work is not available. The timing of the regulations is not yet known and further guidance from the government is also expected.

Employers operating salary sacrifice arrangements for pension contributions should continue to monitor developments and think about what preparations can be made to ensure HR systems are updated for the changes. Employers should also consider what changes need to be made to employee’s employment contracts and if they wish to reconsider their benefit package offering.

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New limits on non-disclosure obligations: A barrier to resolution?

Tue, 12 May 2026 00:00:00 +0100

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Article | 3 min read

New limits on non-disclosure obligations: A barrier to resolution?

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New limitations on an employer’s ability to prevent allegations of discrimination and harassment becoming public are expected in 2027. The changes aim to foster a culture of openness and accountability, but will they in fact create a barrier to resolution?

Published: 12 May 2026
Author: Lauren Wilson

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What’s proposed?

Section 24 of the Employment Rights Act 2025 (ERA 2025), once implemented, will render a contractual non-disclosure obligation void if it would prevent a worker from making an allegation of workplace harassment or discrimination or an allegation around the employer’s response to any such allegation. That is unless the non-disclosure obligation is contained within an ‘excepted agreement’.

Even with an ‘excepted agreement’ in place, workers will still be able to disclose allegations to certain prescribed persons, such as to the police or victim support services (known as ‘permitted disclosures’).

On 15 April 2026, the government launched a consultation seeking views on what conditions should be required for an agreement to be an ‘excepted agreement’; the categories of person to which permitted disclosures may be made; and whether the protection should, in the future, be extended to non-workers.

The government accepts that non-disclosure obligations (NDOs) can be appropriate in some cases, particularly where a worker wants to enter into a settlement agreement with their employer with the assurance that the matter will stay confidential. However, the consultation paper states that, currently, “Some employers have exploited the inherent power imbalance in the workplace to get NDOs signed by workers, creating a culture of secrecy and sometimes leaving perpetrators in place to offend again.” The government’s hope is that, by introducing the proposed changes, workers will be protected from coercion and will only enter into NDOs if fully informed, being empowered to make the decision which is right for them.

It is proposed that, for an agreement to be an ‘excepted agreement’, the worker must:

receive independent advice on the effect of the NDO contained within the agreement from a prescribed person who has indemnity insurance in place and whose name is included in the agreement
express their preference to enter into the agreement containing the NDOs in writing, having had independent advice – employers may even be prevented from proposing an agreement with NDOs as an option
have a right to withdraw from the agreement during a cooling off period (suggested as 14 days following the date of the agreement) or during a mandatory review period prior to entering into the agreement – the right to withdraw may apply to the agreement as a whole, rather than the NDO only. This could cause difficulties in the context of settlement agreements as an employer would not want to pay settlement money during any cooling off period.
be given a physical copy of the agreement containing the NDOs after it is signed, with it also being available in an accessible format – there may also be a requirement for the agreement to be written in ‘plain English’
only be prevented from making allegations of harassment or discrimination which has already taken place – meaning a provision seeking to prevent a worker from reporting a new instance would be unenforceable.

The government is also consulting on whether excepted agreements should be time-limited. This is not being actively proposed but it could be implemented if deemed appropriate following the responses to the consultation.

The legislation will apply to any contractual non-disclosure obligation, whether in a contract of employment, a standalone confidentiality agreement, a settlement agreement or otherwise. However, it will not apply retrospectively – only agreements entered into once the legislation is in force will be affected.

Potential impact

Currently, where allegations of discrimination and/or harassment have been made, settlement is often a common goal for the complainant and the employer. Both can be concerned about the prospect of being involved in a public hearing, particularly given the often-sensitive subject matter.

It is generally the norm that a settlement agreement will contain NDOs and will prevent the worker from speaking negatively about the employer going forward. This is often the main draw for the employer, in order to minimise reputational damage. Accordingly, if the proposed conditions on ‘excepted agreements’ are introduced, this may amount to an absolute barrier to settlement for some employers.

The conditions would apply not only to private settlement agreements, but those facilitated by ACAS (known as COT3 Agreements). COT3s currently benefit from being more straightforward than private settlement agreements and do not require the worker to take legal advice. Again, the changes may disincentivise employers, leaving an individual with a choice between a public hearing or no recourse at all.

Whilst the Government’s aims are commendable in theory, it will remain to be seen whether actual cultural change will be achieved by these changes or whether the legislation will simply push individuals towards otherwise unwanted litigation.

What can you do now?

We recommend reviewing your contracts of employment and staff policies to ensure that workers with concerns about harassment or discrimination are encouraged to report this internally, in a private forum. Similarly, you should ensure you have appropriate processes in place to investigate concerns and take effective action.

You may also wish to submit a response to the consultation, which is open until 8 July.

Various other consultations will be taking place as the Employment Rights Act 2025 phases in over 2026 and 2027. We are encouraging clients to participate as the responses will influence what changes are implemented. You can access those which are currently open here.

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Shoosmiths advises Azets on acquisition of Alextra Accountants

Mon, 11 May 2026 00:00:00 +0100

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Press release | 1 MIN READ

Shoosmiths advises Azets on acquisition of Alextra Accountants

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Shoosmiths has advised Azets on its acquisition of Alextra Accountants, one of the North West’s fastest-growing accountancy and business advisory firms, strengthening Azets’ presence across the region and supporting its continued UK expansion strategy.

Published: 11 May 2026

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Alextra, which operates across Stoke-on-Trent, Crewe and Warrington, supports clients across the North West and has built a strong reputation through consistent organic growth and long-standing relationships with SME clients.

The acquisition represents an expansion into the corridor between Birmingham and Manchester for Azets, which has 4,000 people working across more than 70 offices in the UK, and strengthens its presence in the North West region ahead of further investment, and recruitment in the area.

Colleagues at Alextra will benefit from Azets’ investment in people, technology and infrastructure – creating new opportunities for development and enabling even stronger service delivery for clients.

Shoosmiths advised Azets on all legal aspects of the transaction.

The Shoosmiths team was led by Partner Simon Procter, Senior Associate Maria Foanta, Associate Emily Egan andParalegal Fatima Khan. The team was supported by real estate Partners James Speed and Richard Cressall (Real Estate), with tax advice provided by Principal Associate Caroline Airey.

Simon Procter, Partner in Shoosmiths’ Corporate team, said: “We are delighted to have supported Azets on this strategic acquisition. Alextra is a highly respected regional firm with an excellent reputation and strong cultural alignment with Azets. The transaction is a natural fit and reflects continued consolidation and investment within the professional services sector.”

Craig Pettit, deputy General Counsel at Azets, commented: “The Shoosmiths team provided clear, pragmatic advice throughout and guided us confidently to completion. They understand our commercial priorities and navigated a complex process with real efficiency. We’re delighted with the outcome and grateful for their support.”

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Shoosmiths advises NOTE AB on its £72.5m acquisition of STI

Thu, 7 May 2026 00:00:00 +0100

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Press release | 1 MIN READ

Shoosmiths advises NOTE AB on its £72.5m acquisition of STI

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Published: 7 May 2026

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Headquartered in the UK, STI operates two high-technology production sites in Hook and Poynton and employs approximately 300 people. The business is expected to generate revenues of around £60 million in 2026 and brings significant technical capabilities in advanced printed circuit board assembly, box build and testing. The acquisition significantly strengthens NOTE’s position within the strategically important defence sector and expands its Security & Defence segment.

Shoosmiths advised NOTE on all aspects of the transaction, including corporate, tax and securing clearance under the UK’s National Security and Investment Act.

Under client Partner Crispin Bridges Webb, the Shoosmiths team was led by Rosie Hendon (Legal Director), supported by Hugh White (Senior Associate) and Millie Gore (Associate). Tax advice was provided by Laura Gould (Partner), Manpreet Shoker (Senior Associate) and Amelia Hicks (Associate).

Crispin Bridges Webb, Partner at Shoosmiths, commented: “We are delighted to have supported our long-standing client NOTE on its acquisition of STI. The transaction is a significant, strategic step for NOTE and progresses its growth in the defence and aerospace sectors. We’re seeing strong appetite for defence and aerospace M&A across Europe, alongside rising valuations and increased investment in these sectors. Against this backdrop, the ability to navigate complex regulatory and compliance requirements is becoming increasingly critical to the successful execution of these deals.”

Rosie Hendon, Legal Director, commented: “It has been a pleasure to support the NOTE team on another key milestone in its international expansion, and this transaction highlights Shoosmiths’ continued success in delivering successful high-value, cross-border acquisitions.”

Neil Owen, VP NOTE UK, commented: “This is our fifth acquisition in the UK and once again Shoosmiths have been instrumental in the success of the project. Acquisitions require enormous amounts of high-quality knowledge, professionalism and intense working. All of which are abundant within the Shoosmiths’ team.

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Performance management: Building capability, consistency and confidence

Wed, 6 May 2026 00:00:00 +0100

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Article | 3 min read

Performance management

Building capability, consistency and confidence

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Performance management is a focus area for many organisations. However, to be effective it requires clear processes, capable managers and a supportive environment.

Published: 6 May 2026
Author: Jessica Pearson

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Why performance management matters now

Economic uncertainty, cost pressures and ongoing organisational change have sharpened the focus on performance. In addition, the upcoming reduction in the qualifying service required to bring an unfair dismissal claim from two years to six months will mean employers have a shorter period to assess new recruits. At the same time, employee expectations have risen in relation to fairness, support and transparency at work. As a result, performance management has never mattered more.

However, in practice, performance management can be inconsistent, uncomfortable or overly procedural. It often fails for simple reasons, for example a missed follow‑up, feedback left too late, or a concern raised only once the relationship has already deteriorated. We see this most often when line managers have had little support beyond a written policy.

Reframing performance management as a system, not a process

One of the most common problems with performance management is that it is still treated as an isolated HR process, with an annual review cycle or a policy document dusted off only when things go wrong.

Effective performance management operates as part of an integrated people system, not as a separate exercise. It connects how performance expectations are set, how feedback is given, how under‑performance is addressed and how talent is then developed over time.

Most importantly, it needs to align with the wider employee lifecycle which covers recruitment, onboarding, learning and development, reward, progression and lastly exit. When capability, motivation and opportunity are considered together, performance management becomes preventative rather than reactive, and far more likely to deliver sustainable results.

The role of people managers in delivering performance outcomes

Line managers are arguably the real delivery mechanism for performance management. Policies, frameworks and tools clearly matter, but they do not manage performance, people do.

Where managers lack confidence, capability or clarity, organisations see the consequences quickly. It results in inconsistent treatment, difficult conversations being avoided, informal issues escalating into grievances or disputes and increased legal risk.

This matters even more in a changing legislative environment. Scrutiny of fairness, process and decision‑making is increasing and manager capability is therefore now a core risk within an organisation.

Organisations that invest in training managers to handle performance issues early, confidently and consistently are far better placed to achieve both performance and compliance objectives.

The role of AI in supporting performance management (with safeguards)

AI is increasingly being used as a tool to support HR teams and managers, from drafting documents and structuring conversations to highlighting patterns in performance data.

When used carefully, AI can help standardise approaches and support managers in preparing for conversations. But it is not risk‑free. Over-reliance and poor use can undermine trust and raise concerns about fairness and accountability.

Employers should therefore remain cautious and use AI to support, not replace, human judgement. Clear ownership of decisions, transparency about how tools are used, and safeguards to manage bias all matter.

When introduced thoughtfully, AI can support performance management, but it cannot remove the need for capable, well‑supported managers.

Performance management, fairness and legal risk

There is a direct link between fair performance management and reduced litigation risk. Many disputes arise not because expectations were unreasonable, but because processes were applied inconsistently or unfairly. Common pitfalls include:

unclear performance standards
delayed intervention
inconsistency between manager
insufficient support or documentation
moving too quickly into formal procedures.

Training and ongoing support for managers is one of the most effective ways to mitigate these risks. So is designing performance systems with fairness and practicality at their core, rather than relying on policy alone.

What ‘good’ performance management looks like in practice

While every organisation is different, effective performance management consistently includes a few core elements:

Clear expectations and standards
Employees should understand what good performance looks like, how it will be assessed, and how it links to organisational objectives.

Regular, meaningful performance conversations
Performance should be discussed continuously, not saved for formal review points. Timely feedback (both positive and constructive) builds trust and reduces surprises.

Fair review periods, support to improve and consistent documentationWhere concerns arise, individuals should be given reasonable time, clarity and support to improve, with decisions recorded consistently and proportionately.

Knowing when and how to escalate concerns
Managers need confidence to recognise when informal approaches are no longer appropriate and when to move into more formal processes, with HR support.

Taken together, these elements create structure without being overly prescriptive, supporting performance and maintaining fairness.

Where employers should focus now

Performance management works best when it is designed as a system, delivered by capable managers, informed by data and supported by clear governance.

Getting this right is not just about managing risk or addressing under‑performance. It is about building workplaces where expectations are understood, support is genuine and difficult conversations are handled early and fairly, before they turn into formal processes or legal disputes.

HR’s ability to demonstrate value and influence organisation outcomes has never been more important. This year, we are supporting a Future focused thought leadership series by the CIPD. The second article in the series ‘How can people professionals maximise their impact?’ focuses on how human resources management systems can drive performance. For more information visit: Future-focused HR

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Lessons from Grenfell: Consultation on regulating fire risk assessors

Tue, 5 May 2026 00:00:00 +0100

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Article | 5 min read

Lessons from Grenfell: Consultation on regulating fire risk assessors

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The Government is consulting on regulating the fire risk assessor (FRA) profession by mandating competence, accreditation and oversight to improve trust, consistency and safety.

Published: 5 May 2026
Author: Rubina Zaidi

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What matters

On 26 March 2026, the Ministry of Housing, Communities and Local Government (MHCLG) published an open consultation seeking views on proposals to regulate the FRA profession in England. The proposals include mandatory competency standards, clearer professional definition and statutory oversight.

What matters next

The consultation closes on 18 June 2026. It forms part of the Government’s wider programme of professional, institutional and legislative reform in response to the Grenfell Tower Inquiry (the Inquiry).

FRAs, responsible persons (RP), managing agents, building owners and others with fire safety duties should consider responding, as the proposals are intended to form the basis for future legislation regulating the FRAprofession.

Purpose of the consultation

FRAs play a critical role in identifying fire hazards and ensuring appropriate fire safety precautions are in place across almost all non‑domestic premises, including the common parts of residential buildings. Despite the importance of this role, FRAs are not currently members of a regulated profession. There is no single professional body for FRAs, no consistent definition of competence, and no mandatory qualification, certification or registration.

The consultation responds directly to long‑standing concerns about inconsistency in the quality of fire risk assessments and to the Grenfell Tower Inquiry Phase 2 recommendation that the Government establish a system of mandatory accreditation for FRAs.

The current legal framework

Fire safety in non‑domestic premises, including the common parts of blocks of flats (and the building's structure and external walls and doors between the domestic premises and common parts), is primarily governed by the Regulatory Reform (Fire Safety) Order 2005 (FSO). Article 9 of the FSO places a duty on the RP to make a suitable and sufficient fire risk assessment, identifying the general fire precautions required.

RPs may carry out the assessment themselves or appoint a competent person to assist them. Current Home Office guidance recommends that, where an RP lacks the necessary expertise, particularly in more complex premises, expert assistance should be sought. However, there is no mandatory mechanism by which RPs can verify the competence of FRAs beyond the requirement to ensure their competence and the guidance advice to use assessors certificated as competent to carry out Fire Risk Assessments under a recognised (voluntary) certification scheme or those registered as such by a professional body.

The Building Safety Act 2022 has increased the focus on competence across the built environment, particularly for higher‑risk buildings, but it does not regulate FRAs. The consultation and proposed regulation of FRAs seek to address this gap.

The case for reform

Concerns about fire risk assessment practice pre‑date Grenfell, with earlier tragedies such as the Lakanal House fire exposing weaknesses in risk assessment quality and competence. Dame Judith Hackitt’s 2018 Independent Review of Building Regulations and Fire Safety referred to the review hearing that fire risk assessments were sometimes being reduced to “tick‑box exercises” completed by individuals “without demonstrable competence of fire safety….”.

The Inquiry’s Phase 2 report found that fire risk assessments commissioned for Grenfell Tower were inadequate, including failures to identify critical fire safety hazards and failure to identify whether risks previously identified had been remediated, and were relied upon by those responsible for the building without effective scrutiny. The Inquiry concluded that these failings reflected systemic weaknesses in competence assurance and recommended mandatory accreditation to ensure professional standards across the FRA profession.

Survey data published by the Government in September 2024 also highlights the scale of the issue: only 46% of respondents undertaking fire risk assessments belonged to a certification or registration scheme, and around half reported undertaking no formal, regular refresher training.

Proposals under consultation

The consultation envisages a formally recognised, consistently competent and effectively regulated FRA profession, supported by statutory powers. Key areas under consideration include:

Defining the role of FRAs

The consultation proposes legal definition of the role of FRAs and its scope, to support consistency and improve standards and accountability across the sector.

The RP’s ability to conduct their own assessments

The Government is considering if RPs should be professionally registered to undertake fire risk assessments on their own premises at least for higher-risk buildings¹.

Competency frameworks and standards

The Government proposes mandatory competency requirements for FRAs, aligned with recognised frameworks covering skills, knowledge, experience and behaviours, building on work undertaken by industry, including publication of BS 8674:2025. This sets out a structured competence framework for FRAs across three levels-Foundation, Intermediate and Advanced.

Accreditation, certification and career pathways

The consultation explores options for mandatory accreditation and certification, alongside clearer career pathways, including transitional routes, opportunities to demonstrate competence for existing practitioners and measures to attract new entrants to the profession through access to training and apprenticeships.

Regulatory oversight and enforcement

The Government seeks views on what regulatory powers, offences and sanctions would be required to ensure effective oversight of the FRA profession, with the intention that such regulation should sit within the emerging integrated regulatory framework for the built environment, as outlined in the Single Construction Regulator Prospectus published in December 2025.

Implementation and transition

Recognising the need to expand the FRA profession, the consultation asks if and how competency requirements and regulation should be phased in, taking account of current capacity and the need to maintain enough competent FRAs.

Relationship with wider professional reform

The proposals for regulating FRAs form part of a broader reform agenda affecting built‑environment professions. The Government has signalled its intention to create a coherent regulatory framework for fire engineers and other safety‑critical roles in addition to FRAs, with oversight potentially consolidated under a single construction regulator in future legislation.

What this means in practice

If implemented, the proposals would represent a fundamental shift for FRAs and those who rely on fire risk assessments. RPs, building owners and managing agents would gain greater assurance as to assessor competence, but would also need to ensure that the FRAs they appoint meet mandatory requirements once these are in force.

For FRAs, the proposed regulation should bring clearer professional recognition and improved structure, including accreditation, to their career, along with new compliance obligations, continuing professional development and regulatory oversight.

Responding to the consultation

Responses to the consultation will inform the Government’s impact assessment and future legislative proposals, with the Government intending to legislate when parliamentary time allows.

Given the potential significance of the proposals, stakeholders across fire safety, property management, construction and housing should consider engaging with the consultation to help shape the future development and regulation of this critical fire safety profession.

Respondents can complete the online survey or email their responses to:

FireSafetyUnitconsultations@communities.gov.uk

Written responses can be sent to:

Fire Risk Assessor Consultation
Attn: National Resilience and Fire Safety Division,
Fry Building,
2 Marsham Street,
Westminster,
London,
SW1P 4DF

And finally...

We will continue supporting stakeholders by publishing further articles or LinkedIn posts as the consultation, responses and regulatory reforms progress.

¹The Building Safety Act 2022 introduced a definition of a higher-risk building (for residential premises), covering buildings of at least 18 metres or 7 storeys in height and containing at least two residential units.

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Trade marking the tune: Taylor Swift strikes a chord against AI copycats

Tue, 5 May 2026 00:00:00 +0100

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Brand interchange | 3 min read

Trade marking the tune

Taylor Swift strikes a chord against AI copycats

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Online clips of famous faces are now so convincingly manipulated that it can be hard to tell what’s real and what’s fake.

Published: 5 May 2026
Authors: Nicky Jenkins

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Generative AI has become alarmingly good at copying not just how people look, but how they sound and when your voice, face or name is your brand, that’s a pretty big problem.

Trade mark law has become an unlikely but increasingly popular weapon in celebrities’ growing arsenal against AI misuse.

Taylor Swift: from pop powerhouse to trade mark trailblazer

Taylor Swift is the latest, and arguably highest‑profile celebrity to take this route. Just a few days ago, Swift filed three trade mark applications in the US covering two short voice clips: “Hey, it’s Taylor” and “Hey, it’s Taylor Swift”, together with a specific on‑stage image of her holding a pink guitar during her Eras Tour.

At first glance, this might seem a little strange. After all, Swift already has copyright over her music and further protection under publicity and image rights. But the problem with AI is that it doesn’t always copy existing material. Instead, it generates something new that just happens to sound or look uncannily like the original.

Taylor Swift’s filings appear designed to tackle exactly this gap, giving her grounds to challenge content that is “confusingly similar” to her voice or image, even if it isn’t a direct copy of any particular song or photo.

Given the number of AI‑generated deepfakes involving Taylor Swift in recent years, including fake product endorsements, explicit imagery and even fabricated political endorsements, it’s not hard to see why she might want another layer of legal protection.

Sound marks: no longer just for lions and chimes

Iconic examples such as MGM’s lion roar and NBC’s familiar chimes have long been registered as trade marks in the US, and UK trade mark law has also expressly recognised sound marks for many years. What is new, however, is applying that concept to a human voice.

Taylor Swift’s filings are a good example of this shift. Rather than trying to register her entire singing voice (a much trickier proposition), the filings focus on short, identifiable spoken phrases used in promotional contexts. These are exactly the sorts of clips that are easily repurposed by AI tools for adverts, chatbots or fake announcements. They also represent the sorts of uses that trade mark law is particularly well‑suited to police.

This reflects trade mark law being used creatively to address a problem it was not originally designed to solve, but one it may now be particularly well suited to

Matthew McConaughey: “Alright, alright, alright” goes legal

Taylor Swift isn’t alone. Earlier this year, Matthew McConaughey confirmed that he had secured multiple US trade marks covering his voice, image and crucially, his instantly recognisable catchphrase, “Alright, alright, alright!”. That phrase has been associated with McConaughey since Dazed and Confused in 1993, but in the age of AI, it’s also ripe for misuse. Deepfake audio can drop it into adverts, videos or games that have absolutely nothing to do with the actor, and may even cut across brands he’d never endorse.

By registering that sound and associated material as trade marks, McConaughey has drawn a clear legal line around what can, and can’t, be used with his permission. Or, as he reportedly put it, creating a “clear perimeter around ownership” in an AI‑driven world.

Why trade marks, and why now?

So why are stars turning to trade marks rather than relying on existing image and publicity rights?

One big reason is enforcement. Trade mark law is well‑established, commercially focused and crucially, designed to deal with confusion in the marketplace. If consumers might reasonably think a product, service or piece of content is connected with a particular celebrity, trade marks can be a powerful tool to stop it.

AI has made “confusion” much easier to create at scale. A single model can churn out thousands of look‑alike videos or sound‑alike audio clips in minutes, often without copying any one protected work directly. Trade marks shift the focus away from copying, and onto misrepresentation.

There’s also a signalling element. High‑profile filings by figures like Swift and McConaughey send a message to platforms, brands and AI developers: this territory is being staked.

A trend that’s only just beginning

Most of these recent filings are US only, and they won’t magically stop AI misuse worldwide. But they do suggest a growing trend. We might expect more actors, musicians and public figures to follow suit, especially those whose voices or appearances are commercially valuable beyond traditional music and film roles.

For now, trade mark law is being asked to do something new: protect personality, identity and authenticity in a digital world where imitation has never been easier. Whether courts fully embrace that role remains to be seen.

The message from celebrities is becoming clear. In the age of AI, names, faces and voices are no longer just personal attributes; they operate as commercial assets. Trade marks are proving to be one of the more effective ways of protecting them.

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Fiduciary duties in the Supreme Court: ‘Ad hoc’ duties & a flexible approach to assessing equitable compensation

Tue, 5 May 2026 00:00:00 +0100

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Article | 6 min read

Fiduciary duties in the Supreme Court

‘Ad hoc’ duties and a flexible approach to assessing equitable compensation

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Read on for our summary of the Supreme Court's judgment and the key takeaways for directors and insolvency practitioners.

Published: 5 May 2026

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The Supreme Court’s decision in Mitchell & another v Sheikh Mohamed Bin Issa Al Jaber No 2, handed down towards the end of last year, provides important clarification around the circumstances in which commercial actors may owe – and breach – fiduciary duties, and how the remedy of equitable compensation may respond. In this article we consider the decision and the key takeaways for those involved in complex commercial and insolvency disputes, including how liquidators should approach the assessment of claims against directors and connected third parties.

Background

Sheikh Mohamed Al Jaber (the Sheikh) was a director of a BVI-incorporated company, MBI International & Partners Inc (MBI). In March 2009 MBI acquired c890,000 shares in another company associated with the Sheikh, JJW Inc. No payment was ever demanded or made for those shares. MBI was wound up in October 2011, at which point the Sheikh’s powers as a director of MBI came to an end.

In February 2016, however, and without the knowledge of MBI’s liquidator at the time, the Sheikh signed – purportedly for and on behalf of MBI as its director – undated share transfer forms for the transfer of the JJW Inc shares from MBI to another associated company, JJW Guernsey.

In July 2017, all JJW Inc’s assets and liabilities were then transferred to a further associated company, JJW UK. As a result, all the shares in JJW Inc, which JJW Guernsey had acquired from MBI in 2016, became worthless.

The proceedings

In 2019, MBI’s liquidator commenced proceedings pursuant to s.212 of the Insolvency Act 1986, including claims (i) that the 2016 share transfers were void, (ii) that in bringing about the 2016 share transfers, the Sheikh acted in breach of fiduciary duty or in breach of trust, and (iii) that JJW Guernsey was the knowing recipient of the shares.

At first instance the trial judge found in favour of MBI’s (new) liquidators on all three claims. As to the appropriate remedy, the judge held the liquidators were entitled to equitable compensation on a ‘substitutive’ basis. This was calculated as around EUR 67m, based on a pro rata proportion of JJW Inc’s total approximate value, attributable to the relevant shares, at the time of the 2016 share transfer.

The Sheikh and JJW Guernsey appealed to the Court of Appeal, which upheld the judge’s decision in relation to breach of fiduciary duty, but found that the liquidators had failed to establish any loss, on the basis that by the time of the trial the shares were worthless as a result of the 2017 transfer.

Both parties further appealed to the Supreme Court.

The Supreme Court’s decision

There were three key issues for the Supreme Court to determine:

Whether the Sheikh was in breach of fiduciary duty in effecting the 2016 share transfers
If so, whether MBI did not in any event suffer any financial loss, on the basis it acquired the shares in March 2009 subject to unpaid vendor’s liens
How any loss as may have been suffered should be calculated.

The Supreme Court (Lords Hodge, Briggs and Sales, with whom Lords Stephens and Richards agreed) dismissed the Sheikh’s appeals on the first two points and allowed the liquidators’ appeal on the third, effectively upholding the first instance decision.

In particular, the Supreme Court considered that:

1. Fiduciary duties can arise on an ‘ad hoc’ basis and are not confined to well established categories of relationship (such as a company and its director(s)). The necessary relationship of trust and confidence arises whenever one party undertakes, expressly or impliedly, to act in the interests of another. Equity will recognise such an undertaking even in circumstances where the alleged fiduciary has not made any conscious undertaking, or considered the interests of the person to whom they owe a duty, or indeed has acted contrary to that person’s interests.

In the present case, the fact that:

the Sheikh had no actual power – as he purported - to transact on behalf of MBI at the time of the share transfers
the shares were transferred to a company under his control rather than the Sheikh himself

did not prevent a finding that, in the circumstances, he owed and breached a fiduciary duty to MBI. There was also no reason why the single indivisible act of the Sheikh signing the share transfer forms could not both create, and constitute a breach of, a fiduciary duty.

2. As to whether there was an unpaid vendor’s lien in relation to the March 2009 transfers, the key question was whether there was a clear and manifest inference that the parties intended to exclude one. The relevant evidence must be closely related to the transaction but is not limited to the documents agreed by the parties.

Here, the evidence was very strong and compelling. The intention of the March 2009 transfers, which the Sheikh stood on both sides of, was to enable an initial public offering of the shares in JJW Inc. The existence of an unpaid vendor’s lien would have prevented the sale of the shares in the IPO, undermining the transfers’ commercial purpose and rationale.

3. While there is a general tendency in equity to assess quantum at the date of trial, and in common law at the date of breach, it was not necessary for the purposes of this appeal to examine the reasons for that divergence. It was common ground that, on the authorities concerned with equitable compensation, there was no fixed/inflexible rule as to the appropriate date to use. The question therefore was what was just and equitable as between the principal and the fiduciary, or the beneficiary and trustee. Where a fiduciary or trustee has:

misappropriated relevant property
the principal or beneficiary can prove that the property had value when it was misappropriated

they suffer an immediate loss of value.

If the fiduciary/trustee then wishes to rely on other events as having broken the chain of causation, the burden of proof lies squarely with the fiduciary/trustee. Any such events would be unlikely to qualify if the fiduciary was involved, unless there was a clear and convincing innocent explanation.

Here, the Sheikh could not rely on the 2017 transfer as breaking the chain of causation since he made no attempt to prove that – contrary to the evidence otherwise available – that he played no significant part in it. That being the case, the relevant assessment was the loss of the value of the shares to MBI, as principal, when they were misappropriated in 2016. It did not matter that the shares themselves retained their value following the misappropriation, until the 2017 transfer rendered them worthless (to anyone).

Key takeaways

This judgment in particular serves as an important caution to anyone involved with the affairs of a company that they may, purely by their conduct, assume a fiduciary duty to the company, and potentially face legal action in relation to any breach. This is regardless of whether or when they may have held any official post or otherwise expressly undertaken responsibility for certain functions.

Equally, those considering or pursuing claims against commercial actors will welcome the Supreme Court’s confirmation that the question of whether a fiduciary duty exists is not constrained by form or formalities. This is good news for officeholders (but something for directors to be aware of) as it is a helpful reminder that the Court will adopt a “common sense” approach to reviewing potential respondents to claims. It helps defeat technical arguments around formal job titles/ statutory roles that can be raised as a defence against alleged malfeasant acts.

The clarification that a fiduciary will generally not (absent an innocent explanation) be able to rely on supervening events as breaking the chain of causation if he/she “had a hand in them” is also good news as it widens the potential avenues of recovery; as does the flexible approach to assessing equitable compensation.

This is one of four significant judgments concerned with fiduciary duties handed down by the Supreme Court in 2025 (the others being Rukhadze in March, Stevens in July and Hopcraft in August). While each has naturally been concerned with different specific points of law, the relatively high number of them reaching the Supreme Court in quick succession is undoubtedly notable. Whilst these judgments between them reaffirm various long-established principles (with many authorities cited dating to the 1800s), they also contain certain developments, demonstrating the flexibility of English common law to adopt to more modern-day commercial scenarios and disputes.

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Shoosmiths advises Frog Bikes on administration and sale to Frasers Group

Fri, 1 May 2026 00:00:00 +0100

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Press release | 1 MIN READ

Shoosmiths advises on Frog Bikes sale to Frasers Group

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Shoosmiths has advised FRP Advisory in connection with the trading administration of children’s bike manufacturer Frog Bikes and the subsequent sale to Frasers Group, the retail business owned by Mike Ashley.

Published: 1 May 2026

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Founded in 2013, Frog Bikes built a strong UK and international presence, selling more than half a million bikes and distributing across more than 50 countries. Like many businesses in the sector, it has faced sustained headwinds including rising costs, tighter funding conditions and subdued post‑pandemic consumer demand.

Shoosmiths’ Corporate Restructuring & Advisory team advised on the administration process, working closely with management and the appointed administrators.

The Shoosmiths engagement was delivered by Legal Director Tom Swain with support form, Legal Director Charlotte Duce, Principal Associate Louise Snipe and Senior Associate Aadil Qureshi.

The sales process was run by FRP Advisory.

James Keates, Head of Shoosmiths’ Corporate Restructuring and Advisory Team, commented: “Frog Bikes is a well-known and much-loved brand, and this has been a sensitive and fast-moving situation. Our focus has been on supporting the business and its stakeholders through a challenging period, helping to protect value and create the best possible platform for a positive outcome.”

This mandate adds to Shoosmiths’ extensive experience advising on high-profile administrations involving consumer brands, including Pizza Hut UK, Bodycare and Wilko, and highlights the firm’s ability to support clients through complex restructuring and distressed situations.

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Pensions surplus reform legislation receives Royal Assent

Wed, 29 Apr 2026 00:00:00 +0100

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Article | 3 min read

Pensions surplus reform legislation receives Royal Assent

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On 29 April 2026, the Pension Schemes Act 2026 (the Act) received Royal Assent. The Act contains new powers making it easier for pension scheme trustees to make payments out of surplus funds to scheme employers.

Published: 1 May 2026
Author: Lynette Lewis & Rhiannon Barnsley-Bloomfield

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What is the background to the reforms?

Prior to the implementation of the new provisions, to make a payment out of surplus funds to a sponsoring employer in an ongoing pension scheme, the trustees must have passed a resolution known as section 251 resolution before 6 April 2016. This resolution allowed schemes with a pre-existing power to pay surplus funds to employers to preserve it.

However, for schemes that did not pass a resolution in time or have a power to make a payment out of surplus to the employer while the scheme is ongoing, the surplus may be “trapped” until the scheme is wound-up. The funding of defined benefit schemes has improved in recent years hitting a record high, meaning the issue of trapped surplus has become more topical.

The Department for Work and Pensions (DWP) published its Options for Defined Benefit schemes consultation on 23 February 2024 which consulted on methods to make it easier to extract surplus from well-funded schemes. On 29 May 2025, the DWP published its response. As part of this response, the DWP announced that surplus reforms would be taken forward in the Pension Schemes Bill “to make surplus extraction easier for trustees” noting that “Increased surplus flexibilities, with appropriate safeguards, will allow more well-funded DB schemes to release resources back to businesses and scheme members.”

What are the new powers?

Under the new provisions the trustees of a pension scheme may, by resolution, amend the scheme rules to:

introduce a power for the trustees to make payments to the employer of the scheme out of scheme funds where no power currently exists
remove or relax any restrictions imposed by the scheme rules on any existing power to make payments to the employer of the scheme out of scheme funds

The new provisions only apply to schemes that are not being wound-up. The requirement for trustees to have passed a section 251 resolution by 6 April 2016 will be repealed.

What are the restrictions?

The use of the new powers must be in accordance with regulations. The Act sets out that regulations must be made:

prohibiting a payment out of surplus funds unless a relevant actuary is satisfied that certain conditions under the regulations are met in relation to the value of the scheme’s assets and the amount of the scheme’s liabilities
making provisions about the basis on which the value of the scheme’s assets and liabilities are to be determined
requiring the relevant actuary to give a certificate before the payment is made
requiring the members of the scheme to be notified about the payment before it is made

The Government has previously indicated that it is minded to amend the funding threshold at which trustees can share surplus funds with the sponsoring employer of the scheme. This is currently set at funding on a buy-out basis but could be amended to funding on a low dependency basis. The Government is planning to set out further detail in its consultation on the regulations.

Additionally, relaxation of the statutory restrictions does not automatically mean that funds may be paid to a sponsoring employer. Trustees will still be required to ensure that the exercise of any powers under the trust deed and rules are exercised in accordance with their fiduciary obligations to members.

When can the new powers be exercised?

According to the Government’s Roadmap, the surplus regulations and guidance will come into force by the end of 2027.

Separately, at the Autumn Budget 2025, the Government announced that from 6 April 2027, schemes will be able to pay surplus funds directly to scheme members over the normal minimum pension age, where the scheme rules and trustees permit it. The change is set to be introduced in the Finance Bill 2026-27.

Key takeaways

Regulations, which will contain much of the detail on the use of the new powers, are expected by the end of 2027. Guidance is also expected at a similar time. Trustees and employers of well-funded schemes should continue to monitor developments in this area and consider if the new powers could address any trapped surplus in their schemes.

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Pension Schemes Act 2026: DC pension shake-up

Wed, 29 Apr 2026 00:00:00 +0100

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Pension Schemes Act 2026: DC pension shake-up

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On 29 April 2026, the Pension Schemes Act 2026 (the Act) received Royal Assent. The Act contains multiple reforms to DC pensions.

Published: 1 May 2026
Author: Heather Chandler & Rhiannon Barnsley-Bloomfield

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What is the background to the reforms?

The Act was originally introduced as the Pension Schemes Bill on 5 June 2025. It is intended to “tackle schemes delivering poor returns for savers, combine smaller pension pots, and create bigger and better pension funds” with multiple measures introduced to reform the DC pensions market.

Scale requirements

Following the Government’s response to its consultation on Unlocking the UK pensions market for growth, there are new requirements for DC multi-employer schemes (ie master trusts and GPPs) to operate a main scale default arrangement (MSDA) which has at least £25 billion in assets under management from 2030 otherwise the schemes will no longer be qualifying schemes for auto enrolment purposes.

If a scheme cannot meet the above requirement, there are two additional routes for schemes intended to “balance the need for a strong, consolidated market with the benefits of innovation, competition and orderly transition”:

the transition pathway: giving existing smaller schemes that have at least £10 billion in assets under management in a MSDA by 2030 an additional five years to meet the scale requirement if they can show they have a credible plan to meet the requirement
the new entrant pathway: giving new schemes the ability to enter the market if they are offering a genuinely innovative proposition that is “materially different” to existing market participants

Guidance on the new requirements has been published by the Department for Work & Pensions (DWP) and The Pensions Regulator (TPR). The transition pathway is expected to open in 2029 before the requirements apply (which is expected to be from 1 January 2030 at the earliest).

Contractual override

The Act introduces a contractual override for schemes regulated by the Financial Conduct Authority (FCA). Providers will be able to make “unilateral changes” to schemes, including amending terms or transferring a scheme to a different scheme operated by the same provider or a scheme operated by a different provider without consent from members. Unilateral changes are subject to the “best interests test” and a certification from an independent person that the test is met.

Contractual override is expected to be available from 2028.

Value for Money assessments

The Act provides the legislative powers to mandate the Value for Money (VFM) framework for trust-based schemes with DC benefits which intends to shift the focus from cost to value. Trustees must carry out an assessment and assign a VFM rating.

If the trustees assign a ‘not delivering’ rating, they must prepare an action plan for TPR and inform the participating employers of the rating and the actions that the trustees consider appropriate having regard to the rating.

On 8 January 2026, the FCA, DWP and TPR jointly published a consultation on the proposed new framework. TPR and the FCA are targeting 2028 for the first VFM assessments to be provided under the framework with data collection for the new framework expected to begin in 2027.

Automatic small pot consolidation

Automatic enrolment schemes will be required to transfer small pension pots to authorised consolidators if they:

are £1,000 or less in value (but not nil)
have had no contributions paid into them or any active investment decisions made in respect of them in the last 12 months

There are certain exemptions, such as if the trustees of the scheme consider it is in the best interests of the member not to transfer the pot, for example, if the pot is held in a scheme that provides for a particular religious belief or the pot holds a legacy benefit such as a protected pension age. Members will also be able to opt-out of consolidation.

Eligible master trusts will be able to apply to TPR to become authorised consolidators.

The Government intends to introduce regulations for small pot consolidation in 2027/28 and the process of selecting consolidators is expected to take place in late 2028 / early 2029. The duty to consolidate is expected to come into force from 2030.

Default pension benefit solutions

Trustees of DC schemes will be required to develop ways for members to receive their pension without the member having to make complex choices about how they want to receive those benefits (ie a default pension benefit solution). The solution must be appropriate for the generality of scheme members and should provide an income for the whole of retirement. The solution will be the designated solution under which members will receive their pension benefits unless they choose an alternative.

DWP regulations and FCA rules are expected in 2026. Master trusts are expected to start complying in 2027 with other schemes complying from 2028.

Key takeaways

There are a number of different measures being introduced with various implementation timelines. Trustees of DC schemes should check they are making the necessary preparations to ensure they can comply. TPR has recently published a blog post detailing the new requirements and suggesting that “smaller schemes must take a clear-eyed look at whether they can continue to meet rising expectations – or whether members would be better served through consolidation or wind up.”

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Virgin Media remedy now in force for pension schemes

Wed, 29 Apr 2026 00:00:00 +0100

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Article | 3 min read

Virgin Media remedy now in force for pension schemes

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On 29 April 2026, the Pension Schemes Act 2026 (the Act) received Royal Assent. From this date, the Virgin Media remedy came into force.

Published: 1 May 2026
Author: Suzanne Burrell & Rhiannon Barnsley-Bloomfield

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The fix is in response to uncertainty following the judgement in Virgin Media Ltd v NTL Pension Trustees II Ltd.

What did the case say?

Pension schemes could contract-out of the additional state pension from 6 April 1997 until 6 April 2016. However, as part of contracting-out, schemes were required to provide a minimum level of benefits that were at least broadly equivalent to a “reference scheme”. Legislation provided that amendments to those benefits would be void unless written actuarial confirmation was obtained that the scheme would continue to satisfy this “reference scheme test” following the amendments.

The need for written actuarial confirmation (also referred to as a section 37 confirmation) was confirmed by the High Court, and later the Court of Appeal, which found that if the written actuarial confirmation was not obtained before the amendments were made, the amendments were void.

Why is this an issue?

Given the passage of time and difference in practice across schemes, some trustees and employers have found that various amending deeds do not provide clear evidence that written actuarial confirmation was obtained. This has led to lack of clarity over whether certain amendments were valid, potentially leading to material changes in benefits and funding requirements as well as delaying transactions such as risk transfer projects.

There has continued to be uncertainty in the industry, including debate on whether invalid amendments might become valid at the time that the actuary re-certified the scheme as part of the triennial valuation and whether deeds closing the scheme to future accrual required written actuarial confirmation.

Following industry campaigning, the DWP announced that it would introduce legislation to address the issues arising from the judgement. It has done this through the Act.

What is the remedy?

The fix is in sections 103 - 106 of the Act and will permit scheme actuaries to give retrospective written actuarial confirmation in relation to historic amending deeds which will treat amendments as having been validly made insofar as the contracting-out requirements are concerned. The actuary will need to form an opinion about whether it is reasonable to conclude, that on the assumption the amendment was validly made, that the amendment would not have prevented the scheme from continuing to meet the reference scheme test.

An amendment will be deemed a “potentially remediable alteration” that can make use of this remedy if it:

required written actuarial confirmation under the legislation
was treated by the trustees of the scheme as a valid amendment
is not excluded from the scope of the remedy

The remedy will not be available if the trustees of the scheme have taken any “positive action” on the basis that they consider the amendment to be void by:

notifying any members of the scheme in writing that the trustees consider the amendment to be void and that the scheme will be administered on the basis that the amendment has no effect
notifying any members of the scheme in writing of any other step taken in relation to the scheme which has, or will have, the effect of altering payments to or in respect of members of the scheme

Are there any exemptions?

Schemes are excluded from the scope of the remedy if any question relating to the validity of an amendment:

has, before 29 April 2026, been determined by the court in qualifying legal proceedings
was in issue on or before 5 June 2025 in qualifying legal proceedings but has been settled by agreement between the parties at any time before 29 April 2026
was in issue on or before 5 June 2025 in qualifying legal proceedings and remains in issue in those proceedings

“Legal proceedings” means proceedings for the determination of a dispute brought before a UK court. They are “qualifying legal proceedings” if they will determine a dispute as to the rules of the scheme and the parties include the trustees and one or more members or other beneficiaries of the scheme.

Is there any guidance?

The Financial Reporting Council issued guidance on 23 January 2026 to assist pension scheme actuaries asked to provide retrospective confirmation to validate historic changes to pension scheme rules. On 26 March 2026, The Pensions Regulator published guidance for trustees on the use of the remedy.

Key takeaways

Now that the Virgin Media remedy is in force, scheme actuaries can give retrospective written actuarial confirmation to schemes if they consider the requirements are met. For schemes with an identified issue, this will be welcome news. Trustees should review amendments dated between 6 April 1997 and 5 April 2016 and take legal advice on whether the statutory requirements were met or if the amendments need to be corrected using the remedy.

Some schemes may have paused de-risking transactions while waiting for the legislation and may now be ready to proceed now the uncertainty has been cleared.

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From grievances to governance: AI’s impact on higher education HR

Wed, 29 Apr 2026 00:00:00 +0100

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Article | 4 min read

From grievances to governance

AI’s impact on higher education HR

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Artificial intelligence is no longer a future concept for higher education institutions. The challenge is not simply whether AI should be used, but how it can be integrated responsibly, transparently and lawfully into people management processes.

Published: 29 April 2026
Author: Kate Dodsworth

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AI is already embedded in the day‑to‑day working lives of staff and HR teams alike. From generative AI tools used by employees to draft grievances and tribunal claims, to management systems that rely on algorithms to support recruitment, performance management and decision‑making, AI is reshaping how employment relationships function within universities.

While much public commentary on AI in higher education continues to focus on student use and academic integrity, there is growing recognition that the legal, ethical and operational implications for university HR functions are just as significant. Sector‑specific guidance and commentary make clear that institutions must now grapple with AI’s impact on governance, fairness, data protection and staff wellbeing, often within a complex unionised environment.

Employees, grievances and the rise of AI‑assisted complaints

One of the most immediate impacts of AI on university HR teams is visible in grievance, disciplinary and capability processes. Employment and HR commentators increasingly report that staff are using generative AI tools to research employment law, draft detailed complaints and frame allegations in highly legalistic terms.

What were once relatively informal expressions of concern now often arrive as lengthy documents citing statutory provisions, case law and alleged procedural failures. In the higher education context—where staff are frequently highly literate, well‑informed and supported by strong trade union representation—this trend is particularly pronounced. AI lowers the barrier to producing complex submissions, increasing both the volume and sophistication of complaints and, in turn, the time and resource required to investigate them properly.

There is also a growing risk that AI‑generated submissions may contain inaccuracies, fabricated authorities or exaggerated factual assertions. Recent legal commentary highlights the problem of “hallucinations”, where AI produces information that appears credible but is factually incorrect, placing pressure on HR teams to verify material carefully rather than accept it at face value.

For universities, the risk is not that employees are using AI per se, but that grievance processes become more adversarial, more resource‑intensive and more likely to escalate into employment tribunal proceedings if not handled with care and procedural rigour.

Trade unions, collective action and AI‑enabled strategy

Alongside individual employee use of AI, trade unions are increasingly harnessing technology to support members, analyse workforce data and develop negotiation strategies. Unions are also adopting AI‑enabled tools to strengthen collective bargaining positions and to scrutinise employer decision‑making more closely.

For universities, many of which operate within highly unionised environments, this development has practical implications. AI can be used to identify patterns in pay, promotion outcomes or disciplinary trends, enabling unions to challenge perceived disparities more effectively. It can also support organising activity and the coordination of collective responses to institutional change.

Employers introducing AI‑driven management tools without appropriate consultation may face resistance, particularly where unions perceive algorithmic decision‑making as lacking transparency or undermining established protections. In the higher education sector, where collegial governance and consultation are deeply embedded, failure to engage meaningfully with staff representatives can undermine trust and trigger disputes.

Efficiency gains and emerging legal risks

At the same time, HR teams within universities are increasingly exploring AI to support recruitment, workforce planning, note‑taking, case management and policy development. Higher education institutions are actively piloting AI tools and developing internal guidelines to support staff use, often driven by efficiency pressures and resource constraints.

However, AI‑driven HR processes carry material legal risks if deployed without sufficient human oversight. These risks include indirect discrimination, lack of transparency, over‑reliance on flawed outputs and breaches of data protection law. HR teams should also be careful of sharing confidential information with open AI models, particularly where the data concerns sensitive company related information or third-party data; confidentiality is then lost and data protection breaches can arise (and the same applies when individuals do the same).

In a university setting, these issues are compounded by the sensitivity of employment decisions, the diversity of the workforce and the heightened expectations of procedural fairness. Automated or semi‑automated decisions that influence recruitment, promotion or disciplinary outcomes can be challenged where staff are unable to understand how a decision was reached or where human judgement appears to have been displaced.

Regulatory commentary also stresses that accountability for HR decisions cannot be delegated to AI. Institutions remain legally responsible for outcomes, even where AI tools are used to support them.

The case for human oversight

Responsible AI use in HR requires more than a policy statement. It demands governance structures, clear accountability and meaningful human involvement in decisions affecting staff.

For higher education employers, responsible AI means ensuring that:

AI is used to support, not replace, human judgement in people management
decision‑making processes remain transparent and defensible
risks of bias, discrimination and error are actively monitored
staff and unions understand how AI is being used and why.

HR functions, because of their direct impact on individuals’ livelihoods and wellbeing, are among the areas where ethical AI standards matter most.

Practical steps for higher education HR teams

Drawing on emerging best practice, universities can take several practical steps to integrate AI responsibly into HR operations:

audit current AI use, including informal staff use of generative tools in HR‑related processes
set clear boundaries around acceptable use of AI in grievances, disciplinaries and management decision‑making
maintain human review of all decisions with material employment consequences
train HR teams and managers to recognise AI‑generated content and verify accuracy
engage early with trade unions when introducing AI‑enabled tools that affect staff
embed AI governance within existing equality, data protection and risk frameworks.

Looking ahead

AI is already changing how employment relationships operate within universities. For higher education leaders, the task now is to recognise AI as a present‑day employment issue, not a theoretical future risk. By approaching AI strategically, with a focus on fairness, transparency and human oversight, universities can harness its benefits while protecting institutional integrity, legal compliance and staff trust.

For a more in-depth discussion on this topic, join Kate Dodsworth, Jo Tunnicliff and Jonathan Naylor at their session for the Universities Human Resources (UHR) Annual Conference taking place on 12 – 14 May 2026: UHR : Universities Human Resources

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Shoosmiths advises shareholders on the sale of Senseco Systems Limited to andwis

Tue, 28 Apr 2026 00:00:00 +0100

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Press release | 1 MIN READ

Shoosmiths advises shareholders on the sale of Senseco Systems Limited

to andwis

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Shoosmiths has advised the selling shareholders and the executive management team of Senseco Systems Limited on the sale of the business to andwis, a national group of specialist technical and compliance service providers backed by H.I.G. Capital.

Published: 28 April 2026

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Founded in 2009, Senseco is a leading provider of fire detection, suppression, security and automation systems, with a strong presence in the large and complex fire systems market across London and the South East. The transaction is a significant step forward for the business, bringing it into andwis’ wider portfolio of specialist providers operating across environmental, safety and compliance services. The addition of Senseco creates one of the UK’s largest independent providers of fire and security services.

Shoosmiths advised the selling shareholders on all legal aspects of the sale. The firm previously advised the investor on its initial investment into Senseco in 2019 and worked closely with the group on all seven subsequent bolt-on acquisitions.

Partners Aleks Bosch and Amit Nayyar co-led the transaction, with support from Principal Associate Adam Frost, Associates Sam Enderby and Olivia Ashcroft and Trainee Solicitor Stella Loukaidou. Principal Associate Caroline Airey and Principal Associate Georgina Jones provided tax support.

In a joint statement, Aleks Bosch and Amit Nayyar commented: “We have been working with Senseco for many years now and are delighted to have supported it on this deal.Senseco is a high-quality business with a strong track record of growth, and this transaction represents an exciting next step as it joins the andwis platform.

“This transaction underlines an increasingly confident UK M&A market that is providing opportunities across a number of sectors championed by Shoosmiths. We have an active team in the market and look forward to continuing to support leading companies and investors across the country as they undertake keynote transactions.”

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Shoosmiths bolsters Corporate team with ECM and Public M&A partner hire in London

Mon, 27 Apr 2026 00:00:00 +0100

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Press release | 2 MIN READ

Shoosmiths bolsters Corporate team with partner hire in London

Shoosmiths announces the arrival of Equity Capital Markets (ECM) and Public M&A lawyer Ed Nisbet

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Shoosmiths is pleased to announce the arrival of Equity Capital Markets (ECM) and Public M&A lawyer Ed Nisbet as a partner in the firm’s London office.

Published: 27 April 2026

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Ed specialises in ECM and Public M&A matters, advising a diverse client base spanning public companies, boards, investment banks and investors. He arrives at the firm with 14 years’ experience as a corporate lawyer and was previously at Osborne Clarke.

Ed brings to Shoosmiths a high-quality mid-market ECM practice, with cross-sectoral experience. He has a particular focus on areas including technology, financial services, healthcare and energy transition, which aligns with Shoosmiths’ key sectors, including Financial Services, Healthcare and Technology. He has advised on complex restructurings and cross-border deals, AIM IPOs and secondary fundraisings, as well as strategic transactions.

Ben Turner, Head of Shoosmiths’ national Corporate team, said: "We're thrilled to welcome Ed to the team. His strong track record supporting clients on ECM and public M&A transactions makes him a key addition to our full-service corporate offering. Ed’s recruitment provides additional bench strength to complement our dynamic, award winning ECM practice."

Ed Nisbet said: “I’m delighted to be joining Shoosmiths’ Corporate team at a time of strong momentum for the practice. The firm has developed a high-quality M&A platform and has clear ambition to further develop its ECM and Public M&A offering.

I look forward to playing an integral role in that growth. With UK equity capital markets activity continuing to build, there is a significant opportunity to expand the firm’s public markets capability alongside its existing M&A strengths and support clients in accessing capital and executing their growth strategies.”

Ed is ranked in Chambers and Legal 500 and he was named as a Star Associate in the most recent edition of Chambers for his work on AIM.

Shoosmiths continues strong growth in London, adding 20 partners since April 2025, including IP lawyer France Delord, private equity lawyers Alison Chivers and Tim Nye and technology lawyer Sarah Reynolds. These appointments deepen capabilities across Shoosmiths’ three core practices in Corporate, Litigation and Real Estate and underline the firm’s strength in key sectors.

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Good news on upwards only rent reviews

Fri, 24 Apr 2026 00:00:00 +0100

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Article | 5 min read

Good news on upwards only rent reviews

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The government has indicated that there will be some flexibility on the terms of rent review clauses despite the ban on upwards only rent review clauses contained in the English Devolution and Community Empowerment Bill.

The Bill has passed through all its major stages and now is subject to a game of parliamentary ping-pong as the House of Commons and House of Lords resolve their differences in relation amendments made to the Bill in the House of Lords. However, none of the points still at issue relate to rent reviews, so we know the final form of the legislation implementing the ban, subject to a promised consultation on a collar and cap on the amount by which rents could fall or rise on review.

Published: 24 April 2026
Authors: Michael Callaghan

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Implementation date

We do not know when the provisions in the new legislation will come into force. It is not likely to be before 2027 and there have been rumours that it could be as late as 2028, albeit note should be taken of the proposed retrospective aspects of the legislation, which we comment on below.

How will the ban work?

The ban operates where the rent under the lease is expressed to be payable at the higher of the existing rent and a “reference amount”. A reference amount is an amount that is arrived at by a means of calculation and so it could be one or more of an open market rent, an indexed rent or a turnover rent. Under the ban, if the reference amount is lower than the existing rent, the rent is reviewed to the reference amount. However, how does the Bill operate where there are two or more reference amounts? There has been uncertainty over this point. The Ministry of Housing, Communities and Local Government (MHCLG) has provided some much-needed clarity and will be issuing formal guidance when the Bill becomes law.

For example, if an existing rent of £100,000 is to be reviewed to the higher of the open market rent and the existing rent as increased by RPI, what happens if, on review, the open market rent is £98,000 pa and the existing rent increased by RPI is £105,000? Both figures are reference amounts. Which figure becomes the new rent payable by the tenant? MHCLG says that the higher of the two figures can be used as the new rent, since the RPI-based increase is a legitimate rental increase based on the lease terms. This is welcome news.

Landlords with turnover rent leases will benefit most from this guidance. In many cases, the tenant pays a base rent each year that increases by reference to the higher of an index-linked increase and a percentage of the previous year’s turnover. A disastrous trading year by the tenant will not see the base rent for the next year nosedive if the index-linked calculation produces a higher figure.

Consultation on a collar

The government has said that before the ban is implemented it will consult on introducing a collar on the amount by which the rent could fall because of the ban. For example, if the current rent is £100,000 it may be possible for the parties to agree that the rent could not fall by more than, say, 5%. With such a collar, if the open market rent was £91,000 on review, the collar of 5% would mean that the reviewed rent would be £95,000. The government has indicated that if a collar is agreed, it may require a corresponding cap on any increase so that, in the above example, the reviewed rent could never be more than £105,000. Tenants will no doubt welcome this latter proposal.

Retrospective effect

One amendment made in the House of Lords makes the ban operate retrospectively, but only where the landlord and tenant have, on or after 17 March 2026, entered into arrangements for the renewal of an existing lease and the renewal lease is granted on or after the ban comes into force. “Arrangements for the renewal of an existing lease” include agreements for lease, options to renew (whether contained in a lease or in another document) and landlord’s put options. Where these provisions apply, the starting rent on the grant of the renewal lease cannot be calculated on an upwards only basis and any rent review in the renewal lease cannot operate on an upwards only basis.

Comment

Development

Partner and co-Head of Development James Needham comments “when negotiating pre-lets, developers have to anticipate what an investor will be looking for when the asset comes to market for sale/funding. Until the investment market has reached a consensus on this, developers will need to judge what is likely to be acceptable, but the MHCLG guidance is helpful in confirming that a legitimate increase in one reference amount is not undermined by a fall in others. For now, we are likely to see the continuation of an existing trend – the decline of open market reviews in favour of the greater simplicity and certainty offered by indexation and fixed percentage increases.”

Investment

Partner and co-head of Investment, Kate McCall says “The MHCLG guidance is likely to be cautiously welcomed by investors as a pragmatic softening of the intended ban on upwards only rent reviews. It signals that policymakers recognise the importance of allowing leases to continue delivering rental growth through legitimate index linked or turnover based mechanisms, even where open market rents fall. While material uncertainty remains around collars, caps and the timing of implementation, the guidance suggests a clear awareness of one of the investment market’s principal concerns: preserving income certainty. In practice, this is likely to further accelerate the shift away from open market reviews towards indexation and fixed uplifts, which sit more comfortably with current pricing, funding and valuation discipline”

Corporate occupier

Partner in Real Estate Litigation , Elinor Sandbach comments “The proposed ban on upwards only rent reviews is a positive step for occupiers, offering the prospect of rents that better reflect market conditions rather than being locked into perpetual upward movement. That said, tenants should be cautious about assuming a dramatic shift in balance. Index linked and turnover based mechanisms may still protect landlords from downside risk, and potential rent review collars could further blunt the practical impact of the ban. Ultimately, while the direction of travel favours tenants, the real benefit will depend on careful lease structuring and early strategic advice to ensure the legislation delivers meaningful flexibility in practice.”

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Not such a modest duty: why the new DUAA complaints regime deserves attention

Thu, 23 Apr 2026 00:00:00 +0100

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Article | 9 min read

Not such a modest duty

Why the new DUAA complaints regime deserves attention

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Quietly included in the Data (Use and Access) Act 2025 is a new complaints-handling duty for organisations, coming into force on 19th June 2026. This article explains the changes and how organisations can prepare.

Published: 23 April 2026
Authors: Kate Brimsted

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Unassumingly tucked away amongst the many detailed provisions of the Data (Use and Access) Act 2025 (‘DUAA’) is the new complaints-handling duty for organisations, now inserted as section 164A of the Data Protection Act 2018 and coming into force on 19th June 2026. This article examines what is known about the new complaints regime, the difference it could make for individuals and organisations, and how organisations can prepare.

What’s changing & when?

The UK’s data protection regime already included a panoply of individual ‘data subject’ rights - from the right of access (the ‘DSAR’) to rectification to deletion - and, strictly speaking, the present change is not a new right for individuals. What is changing is the arrival of a new statutory duty on controllers to run a compliant internal complaints process along prescribed timelines.

As the Information Commissioner’s Office (‘ICO’) summarises it in its ‘how to deal with data protection complaints’ guidance dated 12th February 2026 (the ‘ICO Guidance’), data protection law now says that organisations must:

give people a way of making data protection complaints to them; • acknowledge receipt of complaints within 30 days of receiving them
without undue delay, take appropriate steps to respond to complaints, including making appropriate enquiries, and keep people informed
without undue delay, tell people the outcome of their complaints

1. Making the complaint

From 19th June 2026, controllers have specific additional responsibilities in responding to general data protection complaints received from individuals. There is no prescribed language, nor legal terms which an individual needs to use to make a valid general complaint. An individual simply needs to ‘consider that, in connection with [their personal data] there is an infringement of the UK GDPR (or Part 3 of the UK DPA for law enforcement processing)’ by the controller. Although in practice complaints are often generated from (for example) overdue DSAR responses, a complaint doesn’t need to relate to an infringement of any data subject rights.

The complainant does not need to act reasonably, nor to be well-informed about what data protection law requires (why should they be?). They simply need to consider that the organisation, essentially, is breaching data protection law in a way that is connected with their personal data, and therefore with them (or someone they act on behalf of).

The infringement being complained of does not need to be causing a complainant any material or non-material damage (the trigger for a compensation right under Article 82 UK GDPR). A general data protection complaint could potentially be raised if a privacy policy is considered to lack the proper transparency, e.g. a complainant does not understand where their data are being sent or what they are being used for (a criticism that could fairly be levelled at a number of consumer-facing privacy policies). The potential for DUAA’s general data protection complaint duty to become a tactical instrument in the hands of the aggrieved customer or employee should not be underestimated.

2. Facilitation

Every organisation in scope of UK data protection law must facilitate the making of these general complaints ‘by taking steps such as providing a complaint form which can be completed electronically and by other means’ (emphasis added). That is not prescriptive language, and the ICO Guidance states that, whilst an organisation must give people a way to make general complaints directly, the specific method used is discretionary.

Examples could include:

providing a complaint form that people can submit electronically or in writing by email or post
providing an email address for people to send complaints to (this could be signposted by a simple update to the existing public-facing privacy policy)
allowing people to make complaints over the phone or via an online complaints portal
having a live chat function with the option to escalate to a human, if needed

So, there is no need to spin up a web form in order to comply; if existing complaints tools can be adapted, then so much the better. The ICO acknowledges that for organisations with an online presence, people may choose to complain via social media. The ICO Guidance notes that responding via social media is not a secure way of providing information, and recommends that organisations ask for an alternative contact method before providing any substantive response (which will include personal data to some degree). It is unclear whether it would be compliant for an organisation receiving a general data protection complaint via social media (or other channels), to direct the maker of the complaint to re-submit it via the organisation’s alternate designated complaints communication channel.

The ICO Guidance reflects some of the complexities well-established under the data subject rights regime:

it may be appropriate to ask for proof of ID from the complainant before responding
proof of authority to act must be obtained from a complainant expressly complaining on behalf of another, before investigating the complaint (let alone responding)
transparent arrangements should be in place between joint controllers, concerning which is responsible for acknowledging, investigating and/or responding
arrangements with processors (forwarding complaints to the controller, assisting with the investigation and/or response, etc) should accommodate any required assistance the organisation may need to process general data protection complaints

3. Acknowledgment in 30 days

If a controller receives a general data protection complaint, it must acknowledge receipt within 30 days beginning on the day the complaint is received. The ICO Guidance interprets this as meaning ‘30 days start the day after you receive the complaint’, and that allowance can be made if the last day to acknowledge falls on a weekend or public holiday. The ICO’s worked example is of a data protection complaint received on Thursday, 5th June [2025]. The 30 days do not start until the start of Friday, 6th June and this means 30 days end at the end of Saturday, 5th July. However, as this would fall on a weekend, the organisation would have until the end of Monday, 7th July to acknowledge the complaint.

4. Investigating & responding

An organisation must also without undue delay (1) take appropriate steps to respond to the complaint; and (2) inform the complainant of the outcome of the complaint. The DUAA provides guidance on what ‘taking appropriate steps to respond’ should look like. The controller clearly needs to take some action, including ‘making inquiries into the subject matter of the complaint, to the extent appropriate’ and ‘informing the complainant about progress on the complaint’. The ICO Guidance states that the obligation to investigate the complaint starts when the complaint is received; the 30 day acknowledgment window should not be treated as a pause.

According to the ICO Guidance, the investigation phase should comprise:

gathering information needed to consider the complaint, including asking the person making the complaint for more information if it is not clear what the complaint is about. (This may play into the hands of the vexatious complainant - see below)
making enquiries, including speaking to relevant staff members. Progressing the investigation and providing the outcome to the complainant should occur ‘without undue delay’ which the ICO interprets as meaning ‘without an unjustifiable or excessive delay’. Whether the time taken is justifiable in practice will depend upon factors like the complexity of the complaint, its scale (e.g. if longer term) and whether actual harm is being suffered by the complainant as a result of the unresolved issue.

It is, in principle, acceptable for organisations to adapt their existing processes to handle general data protection complaints. However, in practice, organisations may receive mixed complaints that are not confined to data protection issues. In such cases, aligning response times for data protection complaints with those set by other frameworks or sector-specific guidance (for example, in the financial services sector) will not automatically be appropriate. Where possible, organisations should complete their data protection complaint processes sooner, rather than delaying them to match non-data protection timelines.

The ICO recognises that organisations are not required to take steps that would be unreasonable or disproportionate in the circumstances. Accordingly, an organisation’s obligations to respond and to make inquiries are qualified by what is appropriate in each case. In some instances, complaints could be wholly misconceived or nonsensical, justifying a proportionately minimal response effort.

5. Keeping people informed

It is unclear how frequently complainants should be kept informed about the progress of the investigation or what the content of such updates should be. The ICO Guidance suggests this will be more about updates on timeframes and explaining any delays, rather than giving an account of the steps taken so far (which is some relief). This element of the duty on organisations only seems relevant where a complaint could take some time to resolve. It may be possible to close some complaints within the 30 day initial acknowledgment window; in such a case, the ICO Guidance states there is no requirement to provide an acknowledgement and outcome separately, and providing progress updates appears moot.

6. The response

The communication medium is up to the organisation, and it may be most convenient to resolve over the phone (while keeping appropriate records – see below). The response itself should, according to the ICO’s Guidance:

‘explain what you’ve done to resolve their data protection complaint and, where appropriate, any actions you’ve taken as a result’
‘if you think that you’ve complied with data protection law, explain this in detail to the complainant and provide enough information to help the complainant understand how you’ve reached your conclusion’.

The reality may be that an organisation is unable to resolve the complaint to the individual’s satisfaction (particularly if the complainant is acting disingenuously). In this situation, the ICO makes a couple of potentially onerous suggestions: (1) provide more detail to the complainant to clarify the decision; or (2) consider a review process for unresolved complaints. Finally, the ICO could be a good point to remind the complainant they have the right to complain to the ICO, and provide contact details.

7. Recordkeeping

Based on the ICO Guidance, it is recommended that controllers keep a record of the following:

the date the data protection complaint was received
the acknowledgement (including date sent)
any relevant conversations and documents
the outcome of the complaint
any actions taken as a result of the investigation
the number of data protection complaints received, as well as recurring themes and trends.

The ICO can request a copy of such records, which it may decide to do if after 19th June 2026 it is receiving a significant number of complaints from individuals that an organisation has been ignoring or mishandling general complaints made to it, or failing to acknowledge them in time. The DUAA introduced a placeholder for further regulations to be made requiring a controller to (proactively) notify the Commissioner of the number of complaints made to it over specified periods. Currently there is no indication of when such regulations are expected; however, organisations would be prudent to maintain a register of their general complaints.

Which kinds of organisations can expect the most heat and why?

Organisations that are likely to require the greatest investment in effort and preparation are high-volume, consumer-facing or public-facing entities, such as retail banks, utilities, telecommunications providers, large online platforms, public sector service providers, and those that already handle significant volumes of data subject access requests (‘DSARs’).

Other organisations that may face similar challenges include large employers and complex corporate groups, particularly in sectors where restructurings, disputes, or collective issues are common. In these contexts, employees and their representatives may frame workplace grievances as general data protection complaints, or combine both into ‘mixed’ complaints.

Finally, organisations operating within complex regulatory environments in addition to data protection, such as financial services firms (subject to the Financial Conduct Authority or the Financial Ombudsman Service (‘FOS’)), local authorities (subject to Ombudsmen), and the health and education sectors (with their own regulators), may encounter particular difficulties when handling mixed complaints. These challenges can include questions of forum selection, conflicting timelines, and the need to ensure consistent messaging across regulatory regimes.

Pain points

Even though the legal changes introduced by DUAA are fairly modest, in practice, pain points for organisations will arise from how the new duty plays out in terms of volume, human behaviour and existing pressures. The table summarises some areas for consideration (it is by no means exhaustive).

Area

Illustrative examples

Volume, velocity and peaks

Spikes in complaints after security incidents (especially where data

subjects were informed), system outages or contentious product

changes (e.g. data starting to be used for AI model training on an

opt-out basis).

Keeping acknowledgements and progress update communications

on track alongside DSARs, ombudsman cases and ordinary service

complaints queues.

Mixed complaints and forum

juggling

Single complaints that combine a general data protection complaint,

a DSAR, a product or service complaint, and for FS, an explicit FOS

threat - each with different timelines, disclosure expectations and

outcome routes.

Risk of fragmented handling across privacy, customer relations,

legal and HR leading to inconsistent narratives presented to the

ICO, FOS and potentially the courts/employment tribunal.

Resource, skills and first line

recognition

For privacy and complaints teams already managing heavy

DSAR and breach response workloads, they may now be

expected to absorb a new statutory complaints duty, possibly with

limited incremental budget change.

Branch staff, contact centre agents and relationship managers

may struggle to spot when a ‘service gripe’ crosses the line into

a general data protection complaint that must go into the

DUAA-defined process.

Under pressure, teams may revert to personal trackers,

consumer cloud storage or consumer-grade AI tools to get the job

done, creating shadow IT and shadow compliance that sits outside

the organisation’s controls and records

Aggregated regulatory and

litigation exposure

After a security breach, exposure will now include: ICO

engagement, general data protection complaints about both

substance and process, and (potentially) parallel damages claims

driven by claims-management companies.

Poor handling of the general data protection complaint elements

could become part of a narrative about systemic accountability

failings.

Could this be the next DSAR wave?

As some readers will remember, DSARs were used extensively during the PPI mis-selling challenges and in litigation contexts, placing intense strain on banks’ processes (Lloyds Bank reported receiving 600,000 to 800,000 weekly PPI queries in the run up to one particular deadline in 2019). General data protection complaints, especially if leveraged by claims management firms or campaign groups, could play a similar role: a relatively low cost low effort way to apply pressure, obtain information and generate regulatory ‘noise’ around institutions or organisations likely to receive high volumes of complaints from the public, or employees (see above).

Perhaps the most significant risk comes from being caught unprepared. This could lead to missed acknowledgements, inconsistent responses, commercial pressure to ‘pay off’ persistent complainants, tactical use of complaints in parallel forums, and even the growth of shadow IT, as staff try to cope using unapproved tools (OpenClaw, anyone?).

There is likely to be no substitute for investing in proportionate processes, updating privacy notices and adopting internal procedures with clear triage steps, maintaining sensible logs and considering some carefully governed automation. Organisations that take this approach can avoid tripping themselves up and could even find that general data protection complaints become a useful early warning system, rather than the next data protection compliance crisis.

This article first appeared in Volume 26, Issue 5 - April / May 2026 of the Journal of Data Protection

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Salone del Mobile: Protecting the IP in design inspiration

Thu, 23 Apr 2026 00:00:00 +0100

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Brand interchange | 4 min read

Salone del Mobile: Protecting the IP in design inspiration

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This week marks Salone del Mobile, when the global design world gathers in Milan for the annual design and furniture fair.

Published: 23 April 2026
Authors: Rob Sandercombe

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Salone is a celebration of design, creativity and manufacturing, showcasing some exciting collaborations. The main Fiera encompasses more than 1,900 exhibitors from 32 countries, while the wider city hosts an array of different events, exhibitions and presentations from global brands and independent designers alike. In this article, we consider what intellectual property protection is available to designers and brands and discuss some of the issues they should consider when entering into collaborations.

What should designers and brands protect — and how?

For designers and brands in the UK, the following intellectual property protection (which sits across four overlapping regimes) may be relevant:

unregistered design rights (UK): which arise automatically, do not require registration, and post-Brexit, fall into 2 main categories:
- UK Unregistered Design Rights (UDRs): are created under the Copyright, Designs and Patents Act 1988 (CDPA 1988) and protect the shape and configuration of 3D articles (including internal or structural features), but do not protect surface decoration or ornamentation. Protection lasts for the earlier of 10 years from first marketing or 15 years from creation. Importantly though, whichever term applies, in the final five years the right becomes subject to a “licence of right”, meaning the owner must allow licences on fair and reasonable terms; and
- Supplementary Unregistered Designs (SUDs): protect the appearance of all or part of a product, including lines, contours, colours, shape, texture, materials and ornamentation (in both 2D and 3D). Protection lasts for three years but is established only by first disclosure in the UK (which, as discussed below, can prove problematic if the first unveiling of a design takes place at Salone).
registered design rights (UK): protect the appearance of the whole or part of a product, resulting from its lines, contours, colours, shape, texture, materials or ornamentation. To qualify for registration, a design must be new and have individual character. An application must generally be made within a 12‑month grace period following first disclosure, regardless of where the first disclosure takes place (so a first unveiling at Salone can still be followed by a UK application within 12 months). Protection lasts for five years from registration and can be renewed every five years, up to a maximum term of 25 years. In practice, registered designs are typically stronger and easier to enforce than unregistered rights and are therefore recommended as a front-line protection for brands and designers when a design has long‑term commercial potential.

copyright: where a design is determined to be a work of artistic craftsmanship, it may qualify for copyright protection lasting 70 years after the author or designer’s death. However, because copyright is not a registrable right, its existence is ultimately determined by the courts based on the specific facts of the case. A notable example where copyright was recognised is the Eames DSW chair, following the CJEU’s decision in Kwantum v Vitra (24 October 2024). By contrast, the WaterRower decision (WaterRower Ltd v Liking Ltd (t/a Topiom) [2024] EWHC 2806 (IPEC)) illustrates the limits of copyright in design where, despite its aesthetic appeal, the WaterRower was held to not qualify as a work of artistic craftsmanship and therefore did not benefit from copyright protection under UK law.

patents: protect technical inventions (how something works, rather than how it looks) and can offer protection for up to 20 years from filing, subject to annual renewal fees. Because patent applications generally must be filed before first disclosure, they require planning well in advance of any public launch. Notable examples where patent protection has played a role include Anglepoise, whose original spring‑balance mechanism was protected by patents, and Achille and Pier Giacomo Castiglioni’s Arco lamp, which was initially protected by patents before later being recognised as capable of benefiting from copyright protection following Flos v Semeraro (CJEU, 2011).

Designers should also consider registering their name, or studio name, as a trade mark. This is commonplace in the fashion industry but perhaps less well appreciated in the design community. A designer’s name, or studio name, is their brand, and registration protects their position. It also provides designers with a clear legal footing when entering into collaborations, as well as offering certainty to brands.

Collaborations

Eagerly anticipated collaborations this Salone include the launch of The Eames Pavilion System developed by the Eames Office in collaboration with Kettal and exhibited at Triennale Milano from 20 April to 10 May; the Radical Home by Italian Radical Design, which combines reissues from Gufram and Memphis with new designs by Faye Toogood and Objects of Common Interest for Meritalia; and Philippe Malouin’s reimagining of Alessi’s iconic moka coffee maker.

The best collaborations are greater than the sum of their parts, enabling brands to benefit from cutting‑edge designs and the creative direction and positioning of star designers, while designers benefit from the prestige of working with globally recognised brands, access to specialist materials and production expertise, and a platform to present their creations to a global audience.

However, each collaboration raises a familiar, but often under-examined, set of questions: what each party brings to the table (their “background IP”); who owns any intellectual property created through the collaboration (the “foreground IP”); how the designer is credited; who can use what, where and for how long; and how the commercial value of the collaboration is shared between the parties.

From the designer’s perspective, it is essential that their pre-existing design language, aesthetic approach and underlying design know-how are protected, and that they are adequately paid, not only for the initial work, but also for the promotion and commercialisation of the collaborative designs. This is where the agreement should strike an optimal balance of upfront fees and ongoing royalties, as part of a long‑term strategy to consolidate and accumulate value across a broader portfolio of work.

From the brand’s perspective, it is equally important that its brand identity, brand codes, iconic styles, logos, emblems and colourways are protected, and that it secures the rights necessary to market the collaborative creation for a sufficient term, territory and scope of use to support a sustainable long-term business model.

Working positively together, designers and brands can focus and invest in a smaller number of partnerships that offer greater creative and strategic alignment and create more long-term value as a result. However, this requires planning and foresight, not only to identify the right partners, but also to ensure that commercial terms and IP ownership are agreed at the outset, and that the contract is signed before work commences. This is particularly important as, absent an agreement to the contrary, copyright law provides that commissioned work will vest in the designer rather than the commissioning brand, which could run contrary to the commercial assumptions on which the collaboration is based.

Conclusion

Salone offers designers and brands a unique opportunity to showcase their designs to a growing worldwide audience. However, to make the most of this opportunity, we recommend considering the following key points:

create evidence packs for designs so that you can demonstrate when a design existed and what it comprised
consider first disclosure. SUD protection requires first disclosure in the UK, so designers and brands should consider coordinating UK-first press releases or a simultaneous UK presentation to ensure that novelty is preserved
where designs have long-term commercial potential, consider registered designs as early as possible, and in any event within the 12-month grace period following first disclosure
where designs incorporate technical innovation, consider whether patent protection may be available, remembering that patent applications generally must be filed before first disclosure
for legacy designs approaching the end of their 25-year registered design term, it may be worth assessing whether copyright could offer longer-term protection, depending on the nature of the design and how it has been created and commercialised
where product shapes or features have become so well known that they function as a badge of origin, consider whether registration as a trademark may offer an opportunity for long‑term protection, potentially lasting in perpetuity through successive, renewable 10‑year terms
ensure that agreements are in place that cover all key aspects of collaborations before the design work begins.

By addressing these questions as early as possible in the design process, designers and brands can make IP a fundamental part of their design strategy, helping them to identify complementary creative and strategic partners, reach agreements which are mutually beneficial, protect their respective intellectual property and maximise its value, and in doing so turn Salone from a once-a-year moment of exposure into a key part of a long‑term design legacy.

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Railways Bill: ORR’s new enforcement and appeals regime

Wed, 22 Apr 2026 00:00:00 +0100

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Railways Bill

ORR’s new enforcement and appeals regime

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This article examines the Railways Bill’s reforms to the ORR’s regulatory, monitoring and enforcement powers, including a new appeals regime and a re-balanced enforcement model.

Published: 22 April 2026
Authors: Rubina Zaidi

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The Railways Bill proposes the most significant shift in the Office of Rail and Road’s (ORR) regulatory, monitoring and enforcement powers in a generation. This article examines how the reforms will reshape the ORR’s role, including a new appeals jurisdiction and a re‑balanced enforcement model.

What matters

In addition to helping create a new, publicly owned company, Great British Railways (GBR) (to replace Network Rail), the Railways Bill (the Bill) (currently at the Report stage in the House of Commons)will substantially reshape the regulatory remit of the ORR. The ORR will gain a broader monitoring function over GBR’s statutory activities, enforce a new GBR licence, and operate a judicial‑review‑style appeals body for GBR’s decisions on access, capacity, charging and timetabling.

What matters next

Rail operators, freight companies, retailers and other network users should prepare for a regulatory landscape in which regulatory scrutiny increases, and enforcement tools become more targeted. Stakeholders should also anticipate forthcoming ORR and Department for Transport consultations on GBR’s draft licence, the retail code of practice and the new statutory appeals framework.

The ORR’s expanded monitoring remit

The Bill places the ORR at the centre of the reformed rail system. The ORR will assume a broader monitoring and reporting role covering the full scope of GBR’s activities including over its managing, operating and renewing the network; running most passenger services in England; setting fares, selling tickets and providing systems and services relating to the operation of passenger services.

Unlike today’s model, the ORR’s monitoring, which should be targeted, proportionate and outcomes focused, will focus on GBR’s performance of its statutory functions, assessed against GBR’s business plan and informed by Secretary of State guidance. The ORR may investigate issues and raise them with GBR and escalate concerns to the Secretary of State, who makes decisions on action. Importantly, the ORR will not hold enforcement powers in relation to its statutory monitoring role, but its monitoring will play a key role in triggering enforcement action and will support accountability to the Secretary of State where concerns arise.

This separation between monitoring and enforcement places the ORR as an “independent assessor” andexpert advisor to the Secretary of State.

A new, streamlined GBR licence with targeted enforcement powers

A new single GBR licence will be issued by the Secretary of State, with the ORR responsible for monitoring and enforcement. The licence is expected to be narrower and more outcomes‑focused than Network Rail’s current licence.

Key licence changes include:

a move away from routine use of financial penalties for GBR licence breaches. Enforcement will instead revolve around investigations, early resolution and taking enforcement actionwhere appropriate
some areas where ORR previously exercised enforcement powers, such as train service performance, will fall outside GBR’s licence and into the monitoring sphere instead
the Government may include a focused licence condition covering long‑term infrastructure asset stewardship, so the ORR can address the long-term risk of asset deterioration through effective, proportionate enforcement action.

With GBR assuming responsibility for central retail systems and absorbing the ticket‑retailing functions of multiple operators, the new licence will require GBR to:

support an open and competitive retail market
treat independent ticket retailers fairly
comply with a new code of practice which will govern how GBR manages retail systems.

The ORR will enforce the code of practice, with non‑GBR retailers able to raise GBR decisions or actions directly with the ORR. Where the ORR finds non‑compliance, it will have powers to issue binding orders requiring corrective action.

Other key changes introduced by the Bill

A new passenger watchdog (evolving from Transport Focus) will take on the ORR’s current roles relating to passenger information, accessible travel, complaints, delay compensation and sponsorship of the Rail Ombudsman.

The watchdog will:

set industry standards through guidance and codes
monitor compliance
refer concerns to the ORR for enforcement action.

The ORR will continue to enforce licence conditions in these areas and retain its consumer law powers, currently used, for example, to improve ticket fee transparency.

Reforms to access contracts is a further key reform, with the reduction of the ORR’s role in approving or directing access contracts for the network representing one of the most profound shifts for the industry. Under the new model:

GBR will determine access to the network
GBR will set access charges and performance schemes
GBR will issue key policy documents including the Access and Use Policy (AUP) and the infrastructure capacity plan.

Instead, ORR becomes the appeals body for third parties challenging GBR’s decisions on capacity allocation, access and charging.

Under the proposed judicial‑review‑style appeals regime, it appears thatappeals will be assessed according to principles similar to those applied by the High Court of England and Wales on judicial review or the supervisory jurisdiction of the Court of Session in Scotland. Grounds include:

illegality
procedural unfairness
irrationality
legitimate expectation.

This marks a significant change. The ORR is not re‑making decisions on the merits but assessing the legality and fairness of GBR’s decisions.

If an appeal is upheld, the ORR may:

quash GBR’s decision
order GBR to reconsider the matter with directions on how it should be reconsidered
substitute its own decision if there has been an error of law and only one lawful decision was possible.

The ORR’s developing appeals policy envisages:

defined appeal windows (some may be as short as five working days)
a standardised, fast‑paced process
publication of appeals and decisions (subject to redaction).

Stakeholders will need to adapt internal governance and evidence‑gathering accordingly but it should be noted that, at present, the precise scope, procedure and statutory wording of the appeals regime are subject to policy development and regulations.

ORR’s continuing areas of enforcement

Several areas of the ORR’s remit remain unchanged, including:

Health and Safety regulation across the mainline network, London Underground, trams, light rail and heritage rail
Consumer and Competition law powers (concurrent with the CMA)
production of rail statistics
regulation of roads, non‑GBR networks, including HS1, Core Valley Lines and the Channel Tunnel
train driver licensing
station, network and service closure ratifications
regulatory functions in Northern Ireland.

This continuity ensures that ORR retains core regulatory authority in safety, competition, consumer protection and non‑GBR infrastructure oversight.

What the changes mean for industry

Dutyholders should recognise that the reforms do not reduce regulatory scrutiny but re‑allocate and enhance it:

monitoring becomes more expansive and more structured
enforcement becomes more targeted and licence‑driven
appeals become a key mechanism for challenging GBR decisions
retail oversight and data transparency will intensify
passenger standards will be shaped by the new watchdog but enforced by the ORR.

Stakeholders should plan early for this shift, given the complexity of the transition and the number of interdependent regulatory instruments still to be published.

And finally...

We will publish further articles and post information on LinkedIn as the Bill and its reforms progress.

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The end of fire and rehire: Impact on pensions

Wed, 22 Apr 2026 00:00:00 +0100

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The end of fire and rehire: Impact on pensions

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The Employment Rights Act 2025 (the Act) introduces measures making it harder to fire employees and rehire them on different terms with altered pension entitlements.

Published: 22 April 2026
Authors: Rhiannon Barnsley-Bloomfield

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What is the process?

Known in the industry as ‘fire and rehire’, the process involves an employer dismissing an employee on notice in order to bring their old contract to an end and rehiring them on a new contract with different terms. It has been used to change pension scheme entitlements (such as entitlement to participate in a certain scheme) where agreement to the change cannot be reached with the affected employees. It is usually a last resort when harmonising pension benefits.

The practice has been controversial and can create legal and reputational risks for the employer as well as damaging employer and employee relationships. The previous government issued a code of practice in 2024 on the use of the method “to ensure that an employer takes all reasonable steps to explore alternatives to dismissal”. Failure to comply with the code can lead to the employment tribunal applying a 25% uplift to compensation in unfair dismissal claims.

What is changing?

The Act aims to prevent “unscrupulous fire and rehire practices”. From 1 January 2027, if an employer attempts to make a change classed as a ‘restricted variation’ without employee agreement and the employee is subsequently dismissed, such dismissal will be automatically unfair. A restricted variation will include, among other things, “a variation of any term or condition relating to pensions or pension schemes”.

The affected employee(s) may bring a claim to the employment tribunal, and the tribunal may order the employer to pay compensation for the automatic unfair dismissal. There is no service requirement to bring an automatic unfair dismissal claim and there is no cap on the amount of compensatory award that can be made.

Dismissal will not be an automatic unfair dismissal if the reason for the restricted variation was to eliminate, prevent or significantly reduce or mitigate financial difficulties and the employer could not reasonably have avoided the need to make the changes. Such exception will only apply in very limited circumstances. Even if the exception does apply, an employer will still need to demonstrate that the dismissal was fair in all the circumstances to avoid a finding of ordinary unfair dismissal. This will also be the case if the contractual change being made is not a restricted variation.

What impact will this have for pension schemes?

Firing employees and rehiring them on new terms has most often been used to close a pension scheme to future accrual where the scheme has a restrictive amendment power or ongoing participation in the scheme is part of the employee’s terms and conditions and the affected employees do not agree to the change. Although a significant proportion of schemes are already closed to future accrual, open schemes will have one less option available if employees do not agree to proposed changes. It is not just these schemes that are impacted, as any employer with pension entitlements written into employee terms and conditions will find it more difficult to make changes to pension benefits (such as changing pension scheme providers or contribution rates) from 1 January 2027.

The impact is not limited to pensions. Restricted variations will include changes to pay, hours and holidays and will also cover the inclusion of a variation clause permitting an employer to make changes to pay, hours and holidays.

Key takeaways

Employers and trustees should consider their scheme amendment power and the wording in their employee terms and conditions. When issuing employment contracts to new employees, it is advisable to build flexibility into pension entitlements so that contribution rates or membership of specific schemes does not become contractual because of the difficulties arising when altering such terms in the future.

In particular, those schemes open to future accrual may want to consider their options ahead of 1 January 2027, especially if there are any immediate plans to close the scheme to accrual and challenge is expected in getting employees to agree to the changes.

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TAQA appeal ruling: Why directors must rethink intra-group deals

Wed, 22 Apr 2026 00:00:00 +0100

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TAQA appeal ruling

Why directors must rethink intra-group deals

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The Court of Appeal’s recent judgment in TAQA Bratani Limited [2025] EWCA Civ 1669 (“TAQA”) has reshaped the risk landscape for directors operating within corporate group structures, particularly complex ones.

Published: 22 April 2026
Authors: Lauren Moroney

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The Court of Appeal’s recent judgment in TAQA Bratani Limited [2025] EWCA Civ 1669 (“TAQA”) has reshaped the risk landscape for directors operating within corporate group structures, particularly complex ones. While the case arose in the context of transactions at an undervalue, governed by s.238 of the Insolvency Act 1986 (“IA 1986”), the implications of the judgment stretch far beyond distressed companies.

For directors, particularly of large corporates, and especially those who also act as nominee directors for group subsidiaries, TAQA should prompt a re-assessment of the approach to intra-group transactions.

The 238(5) defence

Under Section 238(5) IA 1986, if company directors can satisfy the court that they entered into a transaction at an undervalue a) in good faith and for the purpose of carrying on business, and b) that at the time of the transaction there were reasonable grounds for believing the transaction would benefit the company, then they will avoid an order against them.

The TAQA judgment has narrowed the operation of the s.238(5) defence. The Court of Appeal made it clear that generalised reference to and reliance on, for example, wider group strategy, commercial purpose, or overall deal rationale, will no longer satisfy the test.

Instead, directors must show that each step was for the benefit of the company itself, not merely advantageous to the parent company or the group as a whole. This significantly reduces the room for manoeuvre when defending value movements within a corporate structure.

Single steps can be the “transaction”

TAQA confirmed that, for the purposes of s.238, a single step within a multi‑stage matter can itself comprise the relevant “transaction”. Even if a transfer or restructuring move is embedded within a much larger commercial deal, that broader context will not necessarily save an individual component that strips value from a company.

In essence: every step matters. Directors must be able to justify that each discrete stage of a deal benefits the company on a standalone basis. If one step disadvantages a company, directors can no longer rely on the fact that it sits within an otherwise coherent or beneficial wider transaction. TAQA represents a significant tightening of the analytical lens applied to intra‑group arrangements.

Particular steps directors should be mindful of include, among other things: intra‑group transfers of assets, assumption of liabilities for group benefit, dividend payments supporting deal execution, and steps taken as part of broader restructurings.

Why TAQA matters for directors of large corporates

In reality, most major corporates are unlikely to suffer an insolvency event. However, that is not the real point here. Many large corporations have extensive subsidiary networks, including dormant entities, special‑purpose subsidiaries and newly acquired businesses. It is entirely foreseeable that one of these smaller, sometimes insufficiently monitored, subsidiaries could slip into financial difficulty long before the parent company ever would, and this is precisely where the risk emerges.

If you are a director of a major corporate and you also act as a nominee director on its subsidiaries, following the TAQA ruling, you must ensure particular care is taken and the subsidiary in question is the focus of your decision-making.

Nominee directors often find themselves slightly detached from day‑to‑day operations of smaller subsidiaries, and therefore easily slip into the mindset of assuming that any value transfers within the group are innocuous because it benefits the parent company or is part of a wider deal – post TAQA, that mindset is no longer safe.

The danger zone for nominee directors

The TAQA judgment provides a clear warning: directors cannot take their eyes off the ball simply because an entity is small or non‑core. If a subsidiary becomes insolvent, office‑holders (and the court, should matters proceed to litigation) will examine historic transactions at an undervalue with renewed strictness in light of TAQA.

If one discrete step left the subsidiary worse off, the fact that it advanced a broader corporate strategy is no longer a viable defence, and directors who authorised any such step will face far greater scrutiny of their decision‑making.

A renewed governance focus

For large corporates with extensive group structures, TAQA should prompt a renewed governance focus. The safest path should involve:

documenting the entity‑specific benefit of each step and maintaining careful records evidencing independent judgment at subsidiary level
ensuring nominee directors genuinely understand what is happening within their subsidiaries (and that it is happening for the benefit of the subsidiary)
avoiding reliance on implicit group benefit or assumed alignment of interests.

The key takeaway is that TAQA reinforces that each company is its own legal person and must be treated as such by directors – especially when value flows across the corporate structure.

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BVRLA HGV Outlook 2026: Insights for employers in the sector

Mon, 20 Apr 2026 00:00:00 +0100

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BVRLA HGV Outlook 2026

Insights for employers in the sector

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The BVRLA’s HGV Outlook 2026 highlights ongoing workforce challenges impacting operators’ strategy. While recruitment has stabilised since 2022-23, pressures around staffing, pay and wellbeing remain structural, not merely post‑pandemic effects.

Published: 20 April 2026
Authors: Michael Briggs & Emma Johnson

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Persistent labour pressure: Aging demographics and skills constraints

The report highlights that 65% of operators consider workforce challenges to be significant, rising to 74% among large fleets. Larger operators face continuous recruitment, compliance oversight and higher driver churn, while smaller fleets risk disproportionate disruption when even a single experienced driver leaves. Drivers may also seek alternative routes to work, either as sole traders or via their own intermediaries, increasing competition for labour within the gig‑economy market.

A particular concern is the ageing driver population, with limited inflow from younger cohorts. This presents medium‑term workforce sustainability risks and reinforces the need for careful succession planning, training pipelines and retention strategies.

Workforce pressure extends beyond drivers. The Outlook highlights growing shortages in technicians and diagnostic specialists, driven by increasing vehicle complexity and the transition towards zero‑emission fleets. Medium‑sized operators appear particularly exposed, competing with larger fleets and OEM networks for scarce technical skills.

This combination of driver scarcity, ageing demographics and skills shortages raises longer‑term workforce sustainability concerns. Employers will need to focus not only on recruitment but on retention, upskilling and succession planning, while ensuring recruitment and development practices remain objective and non‑discriminatory.

Wage inflation as a structural cost

The Outlook confirms that wage inflation has reset the sector’s cost base at a higher structural level, whether as a result of increases to employer’s national insurance costs, minimum wage rates or a competitive labour landscape. Pay rises introduced in response to labour scarcity have become embedded.

For employers, this creates several legal and practical challenges:

managing pay consistency between new hires and existing staff and increased exposure to equal pay and discrimination claims if pay differentials are not clearly justified. Careful audits of pay are required
greater likelihood of cost‑driven organisational change, restructuring or tighter performance management, all of which require procedurally fair handling to avoid employee relations matters or employment claims.

These pressures are felt most acutely by SMEs operating in competitive markets where costs cannot easily be passed on despite efforts.

What this means for our clients

The BVRLA Outlook makes clear that staffing and skills pressures are no longer short‑term operational issues but core strategic risks for HGV operators. Wage inflation, demographic change and skills shortages will continue to shape business decisions.

Early legal input on workforce planning, pay structures and managing change will be critical to maintaining compliance, supporting retention and protecting business resilience in an increasingly pressured labour market. Being engaged with and knowing your workforce well, including their concerns for the future, is key for successful business performance at all levels, as is ensuring practices and policies are updated to ensure compliance with clarifying loss impact caused by the Employment Rights Act 2025.

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