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Welcome to the Fifth Edition of DAC Beachcroft's Adjudication Adviser.
In our last update we focussed on a number of Scottish decisions, not least as it appeared that enforcement proceedings were starting to slow down and the process being readily understood and accepted by parties. Since then there have been a number of decisions which have focussed on some very important aspects of adjudication and how the Housing Grants, Construction and Regeneration Act 1996 (as amended) should operate. Key issues which this updater focusses on; is how to ensure that the same dispute is not adjudicated twice and the application process.
I wish everyone a Merry Christmas and a prosperous New Year.
By way of a Judgment given on 3 December 2014 in ISG Construction Ltd v Seevic College  EWHC 4007 (TCC), the Court has underlined, if we did not already know, the importance of contractual payment notices.
Welcome to the First Edition of our Construction Professionals Newsletter. Articles in this edition:
In the period since our last Adviser, surprisingly, there have been few reported adjudication enforcement cases. This Adviser therefore looks outside of the jurisdiction of England and Wales to Scotland and Malaysia to see how our rules and case law have been adopted elsewhere.
Whilst it is not unusual for Scottish adjudication matters to refer to English cases, three recent Judgments show the extent that those Courts will look to uphold the right of adjudication. Notably these cases follow very closely to English precedent. It is arguable that this demonstrates that our system of adjudication appears to be working albeit, sometimes, in a rough and ready manner. Malaysia has become the latest jurisdiction following New Zealand, Singapore and a number of Australian states to adopt statutory adjudication as a dispute resolution method. One of articles provides a very brief review of the rules, which can be seen to be very similar to the UK.
For an aggrieved unsuccessful bidder, bringing a procurement challenge requires fast action in circumstances where the bidder may not be able to point to each and every breach of the Public Contracts Regulations 2006, and is often acting with little more than a feeling that something was not quite right with the process.
This month we've had a couple of helpful judgments concerning whistleblowing. Both look at the topic of whether an employee had been subjected to a detriment because they had blown the whistle. Both of the cases highlight that employment tribunals can and should make distinctions between alleged protected disclosures themselves and the steps taken by the employer to deal with the disclosures and/or to manage the employee who has made them.
Voluntary ex-ante transparency (VEAT) notices can offer a big reduction in the timing of risk exposure in procurements, however a recent Advocate General's opinion on their use of to avoid the remedy of ineffectiveness has clarified the circumstances in which they will and will not have their intended effect.
Since our last update there have been a number of useful decisions providing guidance on the definitions found in the Housing Grants, Construction and Regeneration Act 1996 ("Construction Act") and how the Scheme for Construction Contracts ("Scheme") is to be interpreted. If nothing else this latest batch of cases illustrates the ways in which parties are continuing to seek to resist the enforcement of Decisions.
This edition reviews the Decisions that look at the procedural and technical aspects of adjudication.
Case law keeps coming thick and fast and this month has been no exception. One of the many interesting cases in this alert concerns covert recordings made by an employee of the private deliberations at her grievance and disciplinary hearings. The EAT decided that the evidence was admissible.
A number of legislative changes were made to employment law on 6 April 2014. One of these, ACAS early conciliation (EC), may turn out be nothing more than an administrative hurdle for prospective claimants, but where ACAS do get involved in negotiations a late change to the legislation means that prospective claimants will have to fill in a separate EC form in respect of each potential respondent. This means that if individuals are named as potential respondents in, for example, potential discrimination claims these individual employees will be called by ACAS about whether the claim can be settled. This late change makes it all the more important that all organisations put in place a structure for dealing with early conciliation and let their employees know what to do if they are called by ACAS. All the April changes are outlined below.
Welcome to DAC Beachcroft's Budget 2014 Alert.
Our analysis as to how today's budget affects the business community is below. We think the three changes which will make the most amount of splash are the helpful relaxation and extension of the ISA rules, the temporary doubling of the annual investment allowance and what according to George Osborne is "the most far-reaching reform to the taxation of pensions since the regime was introduced in 1921".
In December last year, the government issued a consultation on zero hours employment contracts. The consultation followed months of political debate concerning the extent of their use and possible abuse by employers.
Welcome to our Inaugural Newsletter! We are pleased to introduce our inaugural TMT Info Law Adviser Newsletter. This is a monthly review of information law updates and industry related news specific to the Telecoms, Media and Technology sector which we hope will be a valuable resource for your organisation.
Last week an early day motion sponsored by Ed Miliband was tabled in Parliament, calling for the annulment of the Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014. The early day motion was tabled in Parliament the day before the Labour party's special conference to discuss its membership and its relationship with the unions.
The motion has been signed by 17 Members of Parliament. Very few early day motions are actually debated however - they tend to be a way of drawing attention to an event or cause. Additionally, since the Labour Party does not hold a majority in the House of Commons, the motion is unlikely to pass.
This month we have wide ranging cases to report on from illegal working to post TUPE harmonisation. One particularly interesting case concerns whether an employer could rely on its wording in a contract to dismiss summarily for theft, which was gross misconduct for unfair dismissal purposes. The EAT found they could not and the employee was wrongfully dismissed because the "theft" had not been deliberate. On the subject of contractual wording we've also had a case from the EAT where, because a contract was not sufficiently clear on what happened to accrued flexi-time on termination of employment, an employee ended up not being paid for over 1000 hours of work. We also set out some of the legislative changes happening on 6 April in order that you can plan ahead.
might be grey and dull outside but it's been lively in employment law this month. We've already alerted you to the fact that the Woolworths collective redundancy case, which looks at what constitutes an establishment for the purposes of collective consultation, has been referred to the ECJ. On the issue of restructuring, the new Collective Redundancies and TUPE Regulations largely came into force on Friday. While not as far reaching as we first thought there are some significant changes which we highlight below. Cases on protecting an employers business are coming thick and fast at the moment. We highlight one case below in which the High Court upheld the post termination restrictive covenants despite the fact that some of the information they were trying to protect was available on social media sites.
Welcome to 2014 and to the first edition of DAC Beachcroft's regular update on legal issues which affect Contractors. We intend to cover all areas of law which we consider to be relevant e.g. Contract, Tort, Employment, Health & Safety, Regulatory, Procurement, Insurance, Insolvency and Dispute Resolution.
Last summer the Employment Appeal Tribunal (EAT) decision in USDAW v Ethel Austin Ltd (in administration); USDAW and anor etc - the Woolworths case - sent shockwaves through the legal and HR professions when it decided that the words “at one establishment” are to be disregarded for the purposes of any collective redundancy involving 20 or more employees.
This case was appealed to the Court of Appeal who heard it yesterday. However, before making a decision on the substance of the appeal, the Court has decided to refer a point to the Court of Justice for the European Union (CJEU) on the interpretation of the European Directive which governs this area. The issue in the Woolworths case was when the duty to collectively consult was triggered. The employer said that it is triggered when 20 employees are at risk of redundancy in any single establishment operated by it. The employees said that the 20 employee trigger relates to the total number of at-risk employees in all the employer's establishments. The EAT agreed with the employees that the correct test was whether the 20 employee total was triggered by the cumulative total of all the establishments.
Immigration is high on the political agenda. As part of the Government's push to reduce net migration, new legislation is coming in which makes it harder for illegal workers to slip through the net and which places tougher measures on employers who flout the regulations.
Welcome to the Second Edition of DAC Beachcroft's Adjudication Adviser. As reported in our first edition there have been a number of useful decisions issued by the Technology and Construction Court ("TCC"). Importantly how insolvency events impact upon the adjudication process.
The Judgments below again illustrate the Court's willingness to enforce decisions, where arguably adjudicators have apparently overstepped the “mark” by deciding issues that allegedly were not presented to them by the parties. However it is notable from recent Judgments the various difficulties adjudicators may face when dealing with disputes within 28 days (as extended) and the fine line that they have to tread. It again illustrates that all parties in adjudications should try to keep the issues as simple and as well defined as possible. This edition looks again at insolvency issues and decisions relating to adjudicators jurisdiction.
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