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View the related checklists about Breach of contract

Issues to consider when drafting a settlement agreement—checklist (employer)

Issues to consider when drafting a settlement agreement—checklist (employer) The employer (and its advisers) should consider the following issues: Preparatory steps • Obtain from the employer: ◦ a copy of the departing employee's latest contract of employment/other relevant documents containing contractual terms (NB these may be in a staff handbook) ◦ details of the contractual benefits enjoyed by the employee ◦ relevant information regarding the employee's pension benefits ◦ relevant information regarding any shares/share options, etc held by the employee? Consider the Articles of Association/any relevant shareholder agreement, share scheme documentation, etc. See also Shares and share options below Status of negotiations • Will negotiations take place between the parties directly, or between their respective legal advisers? • How strong is the employer's negotiating position? How strong are the employee's claims or potential claims? In the case of dismissal, is there a fair reason and has the employer carried out a fair procedure? Is the employer in repudiatory breach? What is the employer prepared to offer initially, and is that...

Considerations and next steps for victims of fraud—checklist

Considerations and next steps for victims of fraud—checklist This Checklist is designed to assist individuals and companies who suspect they have been a victim of fraud. It considers the immediate steps they should take to gather and preserve evidence, obtain legal advice, mitigate and reduce risk and obtain emergency or urgent relief (such as freezing orders and insurance cover), including whether it is necessary to report a suspected fraud to the police and how to do so using the Action Fraud service. It also addresses the choice between issuing civil and criminal proceedings for fraud and explains the possibility of running a civil fraud claim in parallel with a criminal prosecution (private or public). This Checklist should be read in conjunction with the Practice Notes: • Starting a civil fraud claim—a practical guide • Civil fraud—heads of claim • Civil fraud—frequently asked questions (FAQ) • Commencing criminal proceedings—applying for the issue of a summons • Fraud—civil claim and private criminal prosecution compared For full guidance on fraud offence under criminal...

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Liquidated damages v penalty clause—checklist

Liquidated damages v penalty clause—checklist As seen in Practice Note: Contract interpretation—distinguishing between liquidated damages and penalty clauses, the task of determining whether or not a liquidated damages clause may be held to be unenforceable as a penalty is not always an easy one. While it will be a matter of construction for the courts in each case, there are a number of factors to consider when analysing the scope of an alleged liquidated damages clause and whether or not it may be susceptible to challenge as a penalty. If drafting a liquidated damages clause, it is essential that you keep these factors in mind in drafting the clause (and its relationship with related clauses). See: • Drafting and negotiating a liquidated damages clause—checklist • Precedent: Liquidated damages clause For specific consideration of how clauses in commercial contracts which provide for ‘default interest’ have been considered in the authorities, see: • Penalty interest rates in commercial contracts • Contract interpretation—distinguishing between liquidated damages and penalty clauses—When might default interest be...

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Contract claims in the employment tribunal

This Practice Note examines the jurisdiction of the employment tribunal to hear claims for breach of contract under the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 (ET Extension of Jurisdiction Order 1994), SI 1994/1623.For guidance:•on unlawful deduction from wages claims, see Practice Note: Deductions from wages•on the legal and practical issues to consider when deciding whether an employee should bring a claim for unlawful deduction from wages or a claim for breach of contract, see the section of Practice Note: Deductions from wages—Whether to bring an unlawful deductions claim or a breach of contract claim•on employment claims in the civil courts, see Practice Note: High Court and County Court employment claims•on bringing a claim in the employment tribunal, see Practice Note: Submission of a claim to the employment tribunalFor sample wording for ET1 grounds of claim for breach of contract, see Precedent: ET1 grounds of claim—breach of contract.For sample wording for ET3 grounds for resisting a claim for breach of contract and bringing an employer’s contract claim...

Deductions from wages

The right to be paid wages in full is one of the most basic, and oldest, employment rights. A failure to pay will generally give a worker the right to bring a claim for unlawful deduction from wages. In a small number of cases, however, an employer is permitted to make a deduction.The worker's rightsAn employer may not make a deduction from the wages of any worker employed by the employer, or receive a payment from such a worker, unless:•it is required or authorised to be made by virtue of any statutory provision or any relevant provision of the worker's contract, or•the worker has previously signified in writing their agreement or consent to the making of itFor further information, see: When deductions are lawful below.For further information:•on the meaning of 'wages' see: Definition of wages below•on the definition of 'worker' for these purposes, see: Definition of 'worker' below•on the circumstances in which deductions are permitted, see: Excepted deductions and payments below•on the claims that a worker may bring, see: Bringing...

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ET3 grounds for resisting claim and counterclaim—breach of contract

ET3 grounds for resisting claim and counterclaim—breach of contract [Insert in para 6.1 of response form ET3:] Example 1 1 It is admitted that on [insert date] the Respondent summarily dismissed the Claimant from his employment as [enter position, eg sales manager]. For the reasons set out below, it was fully entitled to do so. 2 It was an express term of the Claimant’s contract that he would not use for his own purposes or divulge to any other person, except in the proper course of his duties to the Respondent, any confidential information concerning the Respondent’s business or financial affairs. 3 In breach of that term, the Claimant, with a view to seeking employment with [insert name of company], one of the Respondent’s main competitors, disclosed to the sales director of that company a computer printout containing a complete list of the Respondent’s customers, with details of their purchases from the Respondent within the past year, and also a full and up-to-date copy of the Respondent’s...

ET1 Claim for unfair dismissal—constructive dismissal

ET1 Claim for unfair dismissal—constructive dismissal [Insert in para 8.2 of claim form ET1:] 1 The Claimant was employed by the Respondent as [insert job title, eg ‘a financial analyst’ or ‘an insurance sales manager’] from [insert start date of employment] to [end date of employment][ at its [insert details of particular office or location, eg ‘London Headquarters in Canary Wharf]]. The Respondent is [insert brief description of the nature of the Respondent, eg a global investment bank]. 2 The Claimant’s contract of employment[, dated [insert date],] included the following term[s]: 2.1 [ [ EXAMPLE A (Breach of term of trust and confidence): ]an implied term that the Respondent would not, without reasonable and proper cause, conduct itself in a manner likely to destroy the relationship of trust and confidence between employer and employee; OR 2.2 [ EXAMPLE B (Fundamental breach of express term): ]an express term that the Respondent would pay the Claimant an annual bonus every July based on the performance...

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Where a worker’s pay is not in compliance with National Minimum Wage (NMW) rates, can the worker bring a claim in the employment tribunal and also make a complaint to HMRC for enforcement proceedings against their employer? If the worker’s claim involves a cause of action in addition to their claim for statutory underpayment of wages, would they be able to pursue the claim for underpayment separately via HMRC enforcement, and proceed just with their employment tribunal claim in respect of the other, non-NMW-related, claim(s)?

Where a worker’s pay is not in compliance with National Minimum Wage (NMW) rates, can the worker bring a claim in the employment tribunal and also make a complaint to HMRC for enforcement proceedings against their employer? If the worker’s claim involves a cause of action in addition to their claim for statutory underpayment of wages, would they be able to pursue the claim for underpayment separately via HMRC enforcement, and proceed just with their employment tribunal claim in respect of the other, non-NMW-related, claim(s)? If a worker has not been paid the national minimum wage: • the worker can enforce their entitlement by way of their contract by making a claim for breach of contract or a claim for unlawful deduction from wages • HM Revenue and Customs (HMRC) can enforce the worker's entitlement by issuing a notice of underpayment or suing on the worker's behalf For further information, see Practice Note: National minimum wage, in particular the main sections dealing with Consequences of failure to pay and Enforcement...

Can an alternative supplier be used when a supplier is unable to supply all goods under an exclusive supply agreement?

Can an alternative supplier be used when a supplier is unable to supply all goods under an exclusive supply agreement? Supply agreements A supply agreement regulates the rights and obligations between the parties to buy and sell goods and materials over a specified period of time and usually provides certainty regarding a regular receipt of those goods. Supply agreements can be expressed to take a number of forms: • non-exclusive: the business appointing the supplier has the right to appoint any other supplier • exclusive: the business cannot appoint any other supplier, possibly within a certain territory • sole: one supplier is appointed and no third party can be appointed. The difference between this expression and ‘exclusive’ is that the business appointing the supplier may also be entitled to produce the products and supply them to itself • preferred: the supplier is an approved one but does not necessarily have complete preference over anyone else For more information generally, see: Sale and supply of goods—overview. Exclusive...

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Court of Appeal clarifies when a dissolved partnership may bring litigation (Flohr v Frontiers Capital I Ltd Partnership)

Restructuring & Insolvency analysis: The Court of Appeal has confirmed that the authority to bind a firm for the purposes of its winding up (conferred on partners after the dissolution of a partnership by section 38 of the Partnership Act 1890 (PA 1890)) applies to pursuing causes of action which accrued prior to dissolution. Whether PA 1890, s 38 will permit partners of a dissolved partnership to pursue litigation post-dissolution is a fact sensitive question. The question is whether such litigation is reasonably required in all the circumstances to wind up the affairs of the partnership. Relevant considerations are not circumscribed and will include considerations of prospects of success and cost-effectiveness. In Flohr, the Court of Appeal confirmed a general partner of a limited partnership governed by the Limited Partnership Act 1907 (LPA 1907) was empowered to sue a third party on behalf of the partnership notwithstanding the dissolution and winding up of the partnership. This was so even though the relevant cause of action arose prior to dissolution. Written...

Commercial weekly highlights—19 December 2024

This week's edition of Commercial weekly highlights includes: analysis of the decision in Grain Communications v Shepherd Groundworks which considered whether an employer’s decision to postpone works was a valid exercise of its right to instruct variations or a breach of contract, announcement of the publication of the decision in Sea Consortium PTE Ltd (trading as X-Press Feeders) v Bengal Tiger Line PTE Ltd which considered whether slot charterers fell within the definition of ‘charterer’ in Article 1(2) of the Convention on Limitation of Liability for Maritime Claims 1976, and news that the Advertising Standards Authority has published its latest rulings.