On 17 and 18 February 2025, the Supreme Court heard the appeal in the case of C G Fry & Son Limited v Secretary of State for Levelling Up, Housing and Communities & Somerset Council, a landmark case on the issue of nutrient neutrality. Having observed the hearing from the public gallery whilst seconded to Natural England, I have provided a summary of how the proceedings unfolded while we await the Court’s final judgment.

Background to the case

The case concerns whether the Conservation of Habitats and Species Regulations 2017 (the Habitats Regulations) required an “appropriate assessment” before a local planning authority decided whether to discharge conditions on the approval of reserved matters, having previously granted outline planning permission without this, for a major development of housing on land close to a protected site.

For more information about the history of this case, please see our previous articles covering the High Court case and the Court of Appeal case.

Appeal to the Supreme Court

In November 2024, C G Fry & Son Ltd was granted permission to appeal to the Supreme Court. The hearing took place over 1.5 days on 17 and 18 February 2025 before Lord Reed, Lord Sales, Lady Simler, Lord Hamblen and Lord Stephens. C G Fry & Son Ltd (the Appellant) was represented by Lord Banner KC. The Appellant’s appeal was in relation to two Grounds:

• Ground 1: that the Court of Appeal had erred in their construction of the Habitats Regulations. The Appellant submitted that the Respondents’ interpretation of the Habitats Regulations strayed from a purposive interpretation into “re-writing” the law, which was the responsibility of the government and the legislature rather than the Court. The Appellant also submitted that, in any event, the Appellant’s interpretation was not in conflict with the purpose of the legislation, and existing case law did not preclude the Appellant’s approach.
• Ground 2: the Appellant’s alternative argument was that the habitats legislation did not apply in law to the site (a Ramsar site), so the matters in question were legally irrelevant to the discharge of conditions, and government policy and the National Planning Policy Framework (NPPF) could not make these issues legally relevant.

The Secretary of State (the First Respondent) was represented by Sir James Eadie KC and Richard Moules KC. The First Respondent’s submissions in relation to Ground 1 included the submission that the Habitats Regulations were designed to transpose the EU Habitats Directive (92/43/EEC), whose purpose was to set out appropriate steps to avoid the destruction of habitats and enshrine the “precautionary principle” of environmental law. Sir James Eadie KC submitted that, if the Habitats Regulations were interpreted as narrowly as they were by the Appellant, this would be contrary to the purpose of the Directive and would be untenable.

Somerset Council (the Second Respondent) was represented by Luke Wilcox, who made short submissions in furtherance of the First Respondent’s more substantial submissions.

While these were not referred to in the hearing, the Supreme Court also granted permission for written interventions from the Wildlife and Countryside Link,[1] a coalition of environment and wildlife organisations in England, and also from the Office for Environmental Protection (OEP), who have published their written submissions in respect of Ground 1 on their website.[2]

Significance of the case

Lord Reed acknowledged at the conclusion of the hearing that there were plenty of issues for the justices to consider ahead of providing their judgment. The Supreme Court’s decision to allow written submissions from the OEP and the Wildlife and Countryside Link demonstrates the significance of this case and suggests that the Court recognises the wider implications for society and the environment beyond the facts of this case.

While this case relates directly to nutrient neutrality, the OEP’s written submissions warn that the arguments raised by the Appellant “have implications going far beyond nutrient neutrality” and would result in a “serious weakening” of the environmental protections afforded by the Habitats Regulations for protected sites. If local planning authorities could not require an appropriate assessment before discharging conditions on the approval of reserved matters, the OEP warns that competent authorities “would be compelled to agree to a project that has not been assessed and might well fail an assessment were one to be undertaken”, which would produce a result “at odds with ensuring environmental protection and the purpose of the Habitats Regulations”. Lord Banner KC’s submissions at the hearing indicated that, if this outcome was in line with the correct reading of the legislation, this would be “tough” and Parliament would need to update the legislation if they sought a different outcome.

Despite this case also having wider implications, the issue at the heart of it is the apparent conflict between nutrient neutrality obligations and the delivery of housing and infrastructure. The judgment will be given against the backdrop of the government’s efforts to resolve this conflict and achieve their commitment of building 1.5 million homes and advancing 150 major infrastructure project decisions by the end of this Parliament.[3] As part of the Planning and Infrastructure Bill, the government issued a policy paper on 15 December 2024 inviting views on their proposed new approach to development and nature recovery – this acknowledged that the current approach in relation to nutrient neutrality can be burdensome, and included proposals for Delivery Plans covering specific areas rather than multiple project-specific assessments.[4] The government’s view is that its reform can deliver a “win-win” for development and the environment. It will therefore be interesting to see whether C G Fry’s appeal, regardless of the outcome, contributes to further legislative reform in the context of nutrient neutrality.

We intend to provide an update on this judgment when it is handed down. In the meantime, further information about the case and recordings of the hearing sessions can be found on the Supreme Court website.

[1] Supreme Court grants permission for charity to intervene

[2] OEP publishes written submissions in Habitats Regulations Supreme Court case | Office for Environmental Protection

[3] Plan for Change – GOV.UK

[4] Planning Reform Working Paper: Development and Nature Recovery – GOV.UK

In our previous article here, we reported on the growing use of commercial unmanned aerial vehicle (UAV) operations and looked at some of the legal issues involved. The widespread innovation of new UAV operations across the UK raises a number of questions for landowners in relation to issues such as overflying rights, trespass and nuisance and rights to privacy.

The announcement

This month the UAV industry has taken a step further towards greater commercial drone operations through the UK Civil Aviation Authority (CAA) and Ofcom announcement of the dedication of 978MHz as a radio frequency available for airborne transmission of UAV applications.

Greater autonomy for UAVs

The latest changes follow the CAA in November 2024 enabling new rules giving drones with much greater freedom to fly beyond visual line of site (BVLOS) restrictions. One of the big new beneficiaries of the new policy is the National Grid Electricity Transmission who will be able to use UAVs to conduct aerial surveys of grid infrastructure such as pylons and cables much more efficiently.

These latest changes are steps towards the CAA achieving its road map for the establishment of routine BVLOS operations across the UK by 2027. A market report provided by Business Gateway for the Scottish Government estimated the UK commercial drones market will grow rapidly to £2.2bn by the end of 2027.

The impact

Greater uptake in UAV usage is likely to result in more widespread issues for landowners and with legal enforcement. UK law enforcement agencies have already referred to preparations for new penalties and Unmanned Aerial Vehicles CAA and Ofcom announce new radio frequency for transmission controls on drone violations with a more rigorous set of exclusion operating restrictions around sensitive sites such as airports and military sites.

Conclusion

Whilst the opening up of UAVs creates new legal issues and risks for landowners, at the same time it presents opportunities. Commercial businesses looking to employ UAVs will have a requirement for new operating sites and locations. Many existing commercial premises will be unsuitable due to their existing planning or constrained legal rights.

As we have seen with telecoms and solar, there is likely to be a level of competition amongst commercial UAV operators to create hubs and networks of site locations.

It is set to be a busy time in employment law, with the most significant package of reforms in a generation expected over the next two years. We highlight below two key developments: the introduction of neonatal leave from April 2025, and a wider roadmap of changes under the Employment Rights Bill (ERB) anticipated from 2026 onwards.

Neonatal leave from 6 April 2025

From 6 April 2025, eligible employees will have a new statutory right to take up to 12 weeks’ neonatal leave without having to use existing leave.

Key points for employers:

• Entitlement arises where a child is admitted to hospital within 28 days of birth and remains in care for at least seven days.
• Leave is a day-one right – there is no qualifying period.
• Leave is in addition to other family leave (e.g. maternity, paternity or adoption leave).
• Statutory Neonatal Pay (SNP) is paid at the same rate as statutory paternity or shared parental pay (but only payable where the employee has 26 weeks’ service and meets earnings thresholds).
• Where multiple births occur, a maximum of 12 weeks applies across all children.

Employees taking neonatal leave will benefit from similar protections to those on maternity leave, including:

• Right to return to the same (or a suitable alternative) role.
• Protection from detriment and automatic unfair dismissal linked to their leave.
• In certain redundancy situations, priority access to suitable alternative roles.

Rural businesses should prepare for the introduction of neonatal leave and consider their internal family leave policies, provide suitable training for managers and ensure that payroll is ready to administer SNP where an employee is eligible.

Employment Rights Bill: roadmap of wider changes

Looking ahead, a raft of reforms under the ERB are expected to come into force from autumn 2026 onwards. These include several changes of note for agricultural employers:

1. Unfair dismissal rights from day one. The qualifying period to bring an ordinary unfair dismissal claim will be removed, although there will likely be a ‘light-touch’ dismissal procedure required during the first 9 months.

Implications: Managers will need to be cautious when dismissing new starters. Early documentation, robust probation processes and consistent reviews will be key.

2. Fire-and-rehire restrictions. Employers will be restricted from dismissing and re-engaging employees to force through contractual changes unless facing genuine financial distress.

Implications: This may limit flexibility for employers needing to respond quickly to seasonal or market changes. Contract reviews and early engagement with staff will be essential.

3. Sexual harassment reforms. Employers will be required to take ‘all reasonable steps’ to prevent workplace harassment, including by third parties.

Implications: Policy updates, staff training and a clear complaints process will be essential. This is especially relevant where employees interact with clients or the public (e.g. at farm shops or events).

4. Changes to collective redundancy thresholds. Redundancy thresholds will apply across a business, not per site.

Implications: For larger, multi-site operations, this may increase the chance of triggering collective consultation obligations.

5. Further changes to be aware of include:

• Flexible working requests: employers must give a reasoned refusal based on statutory grounds.
• Time limits for bringing tribunal claims set to extend from three to six months.
• Introduction of rights for zero-hours workers (including guaranteed hours in certain cases).
• Reforms to family leave, including enhanced protection for returning parents and earlier rights to paternity leave.

Although the changes are not coming into force immediately, early preparation will ensure that your organisation is ready for the more employee-focused legal framework on the horizon.

On 20 February 2025, the Upper Tribunal (Lands Chamber) handed down its judgment in Vodafone Limited v Icon Tower Infrastructure Limited and AP Wireless II Limited (Vodafone v Icon).

This case provides important guidance on the strict application of the termination provisions in the Electronic Communication Code (Code).

Background

The Claimant, Vodafone Limited (Vodafone), sought to renew its existing code agreement for a mobile communications site at Steppes Hill Farm.

However, the First Respondent and site provider, Icon Tower Infrastructure Limited (Icon), who had recently purchased the freehold from the Second Respondent, AP Wireless II (UK) Limited, sought the termination of the agreement and the removal of Vodafone’s apparatus.

The Preliminary Issues Icon sought to rely on the following three termination grounds within the Code:

1. Substantial breach: Icon alleged that Vodafone had substantially breached the existing agreement between the parties. In particular, it was alleged that Vodafone had breached the alienation provision (no assignment, transfer etc.) as a result of its relationship with Cornerstone Telecommunications Infrastructure Limited (Cornerstone)

2. Redevelopment: Icon presented the Tribunal with their plan for proposed works to the Vodafone site and a small parcel of neighbouring land (the Orange Site), some of which had already been completed. Icon claimed that their plan demonstrated an intention to redevelop the land which could not be achieved without the removal of Vodafone’s apparatus.

3. Public benefit (Paragraph 21 test): In accordance with paragraph 21 of the Code, a Tribunal can only grant Code rights where:

• the prejudice caused to the site provider by the imposition of the Code agreement is capable of being adequately compensated by money; and
• the public benefit likely to result from the imposition of the Code agreement outweighs the prejudice to the site provider.

Icon’s case was that neither limb of this test was satisfied.

The Upper Tribunal’s Decision

The Upper Tribunal held that Icon failed to establish any of the termination grounds and, therefore, Vodafone were entitled to renew the existing agreement. More specifically:

1. Substantial breach: There had been no breach of the alienation provision as Cornerstone managed the site as Vodafone’s agent.

2. Redevelopment: Icon could not demonstrate the requisite intention to redevelop the land. Broadly, this was because:

• Some elements of the works had already been completed. The Tribunal adopted a literal interpretation of the term ‘intends’, concluding that a person cannot intend to carry out works that have already been completed.
• The proposed demolition of the masts could not constitute redevelopment. The Tribunal clarified that ‘redevelopment’ requires the construction of something new.

The Tribunal also clarified that:

• ‘Neighbouring land’ is capable of including land which is not actually adjacent to the code agreement land. It is a question of proximity to be determined on the individual facts of each case.
• For the redevelopment ground to apply, the site provider must demonstrate an intention to commence the redevelopment work within a reasonable time of the Code agreement coming to an end.3.

3. Public Benefit (paragraph 21 test): To determine the first limb of the paragraph 21 test, the Tribunal assessed whether a renewal of the Code agreement would cause Icon reputational loss. Icon had constructed a new mast on the Orange Site pursuant to planning permission requiring the demolition of Vodafone’s apparatus and, therefore, if the existing agreement was renewed, they would be unable to use the new mast lawfully. Following a detailed analysis of historic case law, the Tribunal held that no reputational loss would occur. The only loss would be a financial one (i.e. a failed investment) which could be adequately compensated by money.

The Tribunal held that no reputational loss would occur. The only loss would be a financial one (i.e. a failed investment) which could be adequately compensated by money.

On the second limb of the test, the Tribunal considered the cost implications to the public of enabling Icon to terminate the agreement. Paragraph 24 of the Code governs the amount of rent payable by an operator. By terminating the agreement, Icon would be able to force Vodafone to migrate to their new mast and, without the limits of paragraph 24, charge higher, unchecked, open market rates. The Tribunal concluded that it was in the wider public interest to ensure that operators benefit from the protection of paragraph 24 as this guarantees the availability of mobile communication facilities to the public at a competitive price.

Comment

The Tribunal adopted a strict interpretation of the termination provisions in this case which is a welcome result for operators. However, site providers can take some comfort from a few small victories in the judgment, such as the broad interpretation of neighbouring land for the purposes of development and clarification on when development work should commence for the purposes of exercising the termination provisions in paragraph 31 of the Code.

Rachael Lloyd’s article first appeared in CIPD’s People Management, published here on 7 March 2025.

Individual consultation

An employer considering making redundancies must consult with affected employees when proposals are at the formative stage and when consultation can still make a difference to the outcome. Employers must approach the consultation process with an open mind and be capable of influence – this is not a tick box exercise.

The employer must provide affected employees with adequate information and time to consider the proposed redundancies, and then listen and consider the affected employees’ responses to the consultation.

Individual consultation will usually involve at least a couple of meetings with each affected employee. This allows the employee to consider and respond to the employer’s proposals, the employer time to consider the employee’s responses, and then for the employer to confirm its outcome.

The individual consultation process will usually involve providing employees with the opportunity to:

• suggest alternatives to avoid redundancies;
• comment on the pool and selection criteria;
• challenge provisional selection assessment;
• consider alternative employment;
• raise issues/concerns regarding the process.

During individual consultation, allow employees to express their views both on issues which are particular to them and which are common to the group as a whole.

There are no minimum timescales for how long individual consultation should last, but very short consultation periods suggest consultation was not carried out adequately.

Both the Employment Appeal Tribunal (EAT) and Court of Appeal have recently grappled with the issue of individual redundancy consultation. In De Bank Haycocks v ADP RPO UK Ltd, the EAT found that a small-scale redundancy process (involving two dismissals) was unfair because there had been ‘no general workforce consultation’ about the redundancy proposal. This was concerning to employers as it appeared to introduce a new obligation to consult the workforce in all redundancy exercises of any size.

However, the appeal court overturned this decision, finding the EAT had been wrong to suggest that, for smaller-scale redundancies in non-unionised workforces, it was a requirement for employers to conduct general workforce consultation.

Collective consultation

Where an employer proposes to make 20 or more employees redundant at one establishment within 90 days or less, they must collectively consult with appropriate representatives of the affected employees.

Collective consultation will happen with a trade union if recognised union; if no union is recognised, the employer will consult with an appropriate standing body of representatives, or elected employee representatives (note: there are prescriptive rules for the election process).

Where fewer than 100 redundancies are proposed, consultation must start at least 30 days before the first dismissal takes effect. Where 100 or more redundancies are proposed, the minimum consultation period is 45 days.

The process starts with the employer providing statutory information to the representatives (such as the reasons for the redundancies, the numbers, the proposed method of selection etc). Consultation must then be undertaken with a view to reaching agreement on ways and means of avoiding the dismissals, reducing the number of dismissals and mitigating their consequences.

It is crucial that the representatives understand the matters which are subject to consultation and are able to express their views on those subjects, with the employer considering those views. Similar to individual consultation, the consultation should happen at the formative stage by providing enough information and time for representatives to respond, and then the employer listening to those responses with a willingness to be persuaded.

Collective consultation is not a substitute for individual consultation. Even when collective consultation is necessary, an employer must still consult with individual employees (but this process may be curtailed/shaped by the preceding collective consultation).

Upcoming changes

Labour’s Employment Rights Bill (ERB) will introduce a number of changes to collective consultation. The headline points to note are as follows:

• Originally, the ERB proposed removing the wording ‘at one establishment’ from the collective consultation obligations, which would have meant that all redundancies across the entire business – even if they were at different sites – would have counted towards the collective redundancy thresholds. However, the latest amendments to the ERB will not remove the wording ‘at one establishment’, so that rule will remain the same. This is good news for employers.
• However, the ERB proposes introducing an additional threshold for redundancies over multiple establishments. Details of the threshold will be set out in further regulations, but are likely to  be either a set number over 20, or a percentage of the workforce. This is likely to mean that more multi-site redundancies will meet the threshold for collective consultation.
• The amended ERB proposes including a provision that, during collective consultation, the employer does not need to consult all employee representatives together or try to reach the same agreement with all of the representatives. This is likely to be particularly relevant for redundancies across multiple sites.
• The amended ERB proposes an increase of the cap on protective awards in collective redundancy situations, from 90 to 180 days, to encourage employer compliance. The consequence of this could be very costly for employers.
• Further guidance for employers on collective consultation processes will be produced in due course.

Complying with consultation requirements is a crucial part of a fair redundancy process. The changes under the ERB will result in more redundancy situations being caught by the collective consultation rules, which will likely increase legal risk. Coupled with the increase in protective awards, this could mean that employers not only risk facing more claims, but those claims may become more complex and expensive.

The recent TCC judgment in John Sisk and Son Limited (Sisk) v Capital & Centric (Rose) Limited (C&C) has demonstrated the importance of clear and consistent contract drafting, particularly in relation to the incorporation of contractors’ “schedules of derogation” or “schedules of clarification”.

Sisk v C&C – Background

Sisk and C&C entered into a JCT Design & Build Contract 2016 (as amended) (the Contract) on 20 May 2022. The works to be carried out included the design and construction of two new residential buildings, repairs and refurbishment of two listed mills and two further existing buildings together with external and other associated works. The dispute centred around which party was contractually responsible for the risks associated with the existing structures on the site and the ability of those structures to support the proposed works

A dispute was initially referred to adjudication to consider two issues: first the ground condition; and second the existing structure. The Adjudicator found in C&C’s favour, ruling that the responsibility for ground conditions and the existing structure was solely Sisk’s risk.

As a result of the Adjudicator’s decision, Sisk issued Part 8 court proceedings, seeking declaratory relief in connection with the allocation of risk under the Contract.

Risk allocation for the existing structures was set out in clauses 2.42.1 to 2.42.3 of the amended conditions. In summary, Sisk was stated to be responsible for risk in relation to the existing structures and ground conditions. However, clause 2.42.4 read “this clause 2.42 shall be subject to item 2 of the Clarifications“. The definition of Clarification was “the clarifications headed ‘Contract Clarifications’ contained within Volume 2, Appendix 2.9 of the Employer’s Requirements”. The Judge focused on this definition and whether there were any inconsistencies in the contract documents. The Judge ultimately disagreed with the Adjudicator’s decision that Sisk was solely responsible for the existing structures and ground conditions.

In particular, the Judge noted that the electronic version of the Contract included two clarification documents, the ‘Contract Clarifications’ and the ‘Tender Submission Clarifications’. Whereas, the paper version of the Contract only included one clarification document, the ‘Contract Clarifications’. The Judge had to determine what documents had been included within the Contract and what fell within the definitions of Clarifications.

This question had substantial implications on the parties’ liabilities. This was because item 2 of the Contract Clarification document provided that “the Employer is to insure that existing buildings/works”, whereas item 2.1.02 of the tender submission clarifications conversely stated that C&C would procure insurance “in line with JCT Option C”.

TTC judgment – pre-contractual negotiations

Both parties submitted evidence of pre-contractual negotiations to support their respective positions. The Judge, however, generally prohibited the parties from relying pre-contractual negotiations. It was considered that “evidence of pre-contractual negotiations is admissible to establish that a fact was known to both parties”. In this case, “any admissible evidence would need to be directed either to a particular known fact or to the general object of the contract”. The Judge decided that they had no proper basis to have regard to the pre-contractual negotiations as admissible evidence of the issues in dispute.

TCC judgment – Which contract documents?

The Judge also had to address the issue of what documents formed the Contract. C&C argued that the Contract definition of “Clarifications” included both the Contract Clarifications and the Tender Submission Clarifications. The Judge, however, rejected this argument, stating “…Section 2.9 referred to a Clarifications Document, not to a Contract Clarifications Document. The contract definition refers expressly to “the clarifications headed “Contract Clarifications” contained within Volume 2, Appendix 2.9 of the Employer’s Requirements”… this can only be referring to the specific contract clarifications worksheet which is “within” the Clarifications Document, rather than to the whole workbook…”

TTC judgment – Clarification definition

In light of the above, the dispute hinged on the fact that “contract clarification two” stated that “the Employer is to insure the Existing buildings/works. Employer also to obtain warranty from Arup with regard to the suitability of the proposed works. Employer Risk”. The Contract failed to provide definitions of Existing Structure Risk or Employer Risk. While it was difficult to see what risk had been allocated to C&C in the absence of sufficient definitions, the Judge objectively concluded that that C&C had accepted the contractual risk associated with the suitability of the existing structures, and that this risk solely fell on C&C, rather than Sisk.

Difference in ‘incorporating’ and ‘referring’ to a document

In this case, the conditions of contract were amended such that clause 2.42.4 was to be subject to the ‘Clarifications’, being contained within the Employer’s Requirements, a contract document. In the comparable matter of Workman Properties Ltd v Adi Building & Refurbishment Ltd [2024], the contract stated that Adi had examined the Employer’s Requirements and had agreed to accept full responsibility for any design. The Court had to consider whether paragraph 1.4 of the Employer’s Requirements meant that Workman had warranted to complete the design to the end of RIBA Stage 4, and whether this was capable of overriding Adi’s obligations. The Court concluded that the Employer’s Requirements were “nowhere near sufficient to require the other unequivocal contract provisions to be read as so heavily qualified”. The Employer’s Requirements therefore did not override the contractual terms here, and Adi remained responsible for ensuring the design was sufficient and adequate for construction.

In Workman, the contents of Employer’s Requirements were not capable of overriding conditions of contract. In Sisk, however, the fact the Employer’s Requirements had been directly referenced in the conditions of contract meant that the opposite was true (i.e. that the Employer’s Requirements outranked the conditions). Readers should note that simply incorporating a contract document within the contract may not have the intended impact, as opposed to expressly referring to the contract document in the conditions. Parties should therefore consider how the contract documents are to be utilised and referred to, and whether an order of precedence clause should be deployed to properly record the parties’ intentions with regard to the contract documents, especially where there may be inconsistencies between documents.

Michelmores’ comments – learning points

These cases highlight important learning points that parties should be mindful of when drafting definitions and incorporating documents into contracts:

• Construction contracts are commonly made up of agreements signed by the parties, which often refer to a set of underlying ‘contract documents’. The contract documents can include specifications, drawings and other particulars that will help define the scope of a party’s obligations. The terms of the contract should clearly identify and incorporate those documents. The parties should also check that any definitions contained in the contract documents align with the express terms of the contract. This can be particularly relevant where a party is using standard form contracts, such as a JCT contract, where pre-existing definitions may not match bespoke specifications and schedules.
• Should a dispute arise as to the interpretation of a contract, Judges may not readily consider pre-contractual negotiations between the parties, as this can only be done in limited circumstances. All information should therefore be included within the terms or in the relevant contract documents. This will minimise the risk of a dispute arising, or there being a need to refer to pre-contractual negotiations to resolve any dispute.
• Parties need to ensure that risk allocation and responsibility is clearly allocated. Where carve-outs are being used, no matter how limited, it is essential the accepted risks are clearly and correctly recorded. This is reinforced by the Judge’s comment that “the bespoke provisions illustrate how negotiations and agreements of such issues can lead to a final contract position of some complexity”. Such mistakes can cause unwanted headaches with the ‘losing’ party suffering additional unexpected costs and liabilities.
• Proper consideration should be given to the procurement and drafting of contracts. Contracts should be drafted with appropriate oversight (including legal input where necessary) which can help minimise the risk of such disputes arising. A modest expense up front in getting the drafting correct can avoid a costly mistake down the line.

Should you have any queries or need assistance with contract drafting or any dispute, please do not hesitate to contact Anna Wood (Partner) or Andrew Pratten (Associate) in Michelmores’ specialist Construction and Engineering team. With thanks to Charlotte Pottow (Trainee Solicitor) for her contributions to this article.

Following the UK’s exit from the European Union, the EUSS provided 5.7 million EEA and Swiss citizens, together with their family members, the opportunity to continue living and working in the UK.

Under the EUSS, successful applicants would either receive ‘pre-settled’ or ‘settled’ status, based on the following residence criteria:

• ‘pre-settled’ status – limited leave to remain in the UK, usually granted where the applicant has been resident in the UK for less than five years.
• ‘settled’ status – indefinite leave to remain in the UK, usually granted where the applicant has been resident in the UK for at least five years.

Prior to the changes introduced towards the end of January 2025, individuals holding pre-settled status were required to submit a further application for settled status, upon reaching the five year residency mark. Under the recent changes, the transition from pre-settled to settled status will be automated, subject to the individual meeting the eligibility criteria.

Why?

In short, because the Court said so! In the landmark case Independent Monitoring Authority v Secretary of State for the Home Department 2022[1] the High Court sought to determine the true nature of the Withdrawal Agreement, and how this should have been applied by the government following Brexit.

In this case, the High Court found that the EUSS procedure in its previous form represented a significant breach of the Withdrawal Agreement. The Court ruled that, because there was an onus placed on the individual to apply for settled status once eligible, and to not do so would most likely result in them losing their legal status, this plainly circumvented the protection and rights afforded to EEA (and Swiss) nationals under the Withdrawal Agreement.

The Court found on two points:

• An individual cannot lose their right of residence in the UK just because their pre-settled leave has expired; and
• Provided that the conditions in Article 15 of the Withdrawal Agreement (continuity of residence) are met, a person with pre settled status will automatically acquire settlement.

Implementation – strategy and roll out timescales

The Home Office has set out its planned strategy to ensure the EUSS procedure is fully compliant with the Withdrawal Agreement terms, as follows:

• In respect of point (i) of the judgment, pre-settled status will not expire. Expiry dates have been removed from individuals’ digital immigration profiles, and cannot be viewed by employers, landlords or any other person confirming a check. Further, employers and landlords are no longer required to conduct ‘follow up’ checks where, previously, the individual’s pre-settled status displayed an expiry date.

However, the same rules continue to apply in respect of curtailment or cancellation where the individual no longer satisfies the continuous residence requirements, i.e. they must not stay outside the UK for more than 180 days in a rolling 12-month period (note, this approach to absences under the Withdrawal Agreement is more lenient than the standard approach, which uses demarcated 12 month periods, starting on the same date each year).

• In compliance with point (ii), the Home Office has introduced an automated process that will convert eligible pre-settled status holders to settled status, without the need to make a further application.

The Home Office confirmed that the updated procedure will be rolled out in phases. The first phase started in late January 2025, and the next later in the year. Therefore, eligible individuals who hit the five-year residence mark prior to the next tranche being contacted may still submit an application for settled status. There is no need to wait for the Home Office to get in contact.

Actions for eligible pre-settled status holders

In line with the roll out timetable, those reaching the five-year mark will be contacted by the Home Office to confirm they will be considering your eligibility for settled status.

To conduct the assessment, the Home Office will review records using government held information, such as tax records, to verify continuous residence, and the Police National Database to determine whether there has been any criminal conduct that would bring eligibility into question.

For those pre-settled status holders who are approaching five years in the UK, they should be proactive in ensuring personal information listed on their UKVI account, such as address and telephone contact number, is accurate and up to date to ensure the Home Office can successfully communicate when they will be considered for switching into settled status and the decision.

Thereafter, those successful will note an automatic change to their digital status to settled status, meaning they are free from immigration control and, in most cases, eligible to apply for British citizenship after one year.

Potential issues

Currently, the checks completed by the Home Office are restricted to whether the individual’s National Insurance number is/was active with HMRC or DWP for five continuous years.

Plainly, there are some immediate issues with this approach. Children, who only acquire a National Insurance number from age 16, will not be identified. Similarly, individuals who have not worked for the continuous five-year period, such as students, will not show as active with HMRC, unless they have engaged in supplementary employment alongside their studies.

Where the Home Office is unable to verify that an individual has acquired the requisite five year continuous residence, their pre-settled status will be extended for five years. However, if the individual believes that they have acquired five-years continuous residence, and can demonstrate this by way of alternative acceptable documents, they are recommended to apply for settled status outside of the automated process.

Acceptable documents could include: mortgage/lease documents, council tax bills, utility bills, bank statements or phone records (these should be accompanied by corresponding bank statements).

For pre-settled status holders who:

• Were resident in the UK by 31 December 2020; and
• Maintained continuous residence for five years

But, have since broken the conditions, before acquiring settled status, the position is less clear. The Home Office recently released a statement to detail the implementation of the Independent Monitoring Authority, which sets out that pre-settled status can be cancelled or revoked where the individual no longer satisfies the conditions of residence set out in the Withdrawal Agreement. However, the Withdrawal Agreement states that, although such measure can be taken, only where “the Secretary of State is satisfied that it is proportionate to curtail that leave”. Clearly, an important distinction, but not included in the current Home Office guidance.

We are hopeful that, as and when such cases land on the Home Office’s desk, further guidance and clarity on what may be deemed proportionate in such circumstances will be released. Until then, there is significant scope for representations to be made on the unconditional language used by the Home Office, and what should be deemed as ‘proportionate’. We anticipate that this will be applied on a case-by-case basis, at least initially.

If you have any questions, please do get in contact with Nicole Hambleton or Lynsey Blyth to discuss.

[1] R (Independent Monitoring Authority for the Citizens’ Rights Agreements) v Secretary of State for the Home Department [2022] EWHC 3274

The Employment Rights Bill (ERB) was published in October 2024 and introduced nearly 30 employee-friendly reforms. Since then, there have been various amendments to the ERB, and the government has responded to a number of its initial consultations.

Below we look at some of the topics subject to amendments and explore how the ERB will change the employment law landscape over the next two to three years.

• SSP – the original ERB proposed removing the four-day waiting period so that SSP became payable from day one of sickness absence. Amendments to the ERB will give employees earning below the lower earnings limit a right to SSP at 80% of their average weekly earnings. This means all employees – regardless of earning levels – will be entitled to some form of SSP from the first day of sickness.
• Collective consultation – the original ERB proposed removing the wording ‘at one establishment’ from collective consultation obligations (which would have meant that any proposed redundancies involving 20 or more employees across any number of sites in the UK would have triggered the requirement to collectively consult). The good news for employers is the government has confirmed it will not introduce this change; however, it will seek to introduce an additional business-wide threshold to cover redundancies across multiple establishments (full details TBC). The ERB will also introduce changes in relation to consultation requirements with employee representatives and increase the maximum protective award from 90 to 180 days, for failure to collectively consult. For a more detailed look at the changes to collective consultation, see our recent article here.
• Zero hours – The amendments to the ERB make provision for the rights relating to zero hours workers (including the right to guaranteed hours and reasonable notice of shift changes/cancellations) to be extended to agency workers. The ERB amendments also introduce the ability for workers (including agency workers) to contract out of the new rights by virtue of a collective agreement.
• Fair Work Agency (FWA) – In its recent amendments to the ERB, the government proposes extending the FWA’s powers to include (amongst others), allowing the FWA to bring Employment Tribunal proceedings on behalf of workers who do not pursue a claim themselves and providing workers with legal assistance in employment proceedings, with the legal costs potentially recoverable from employers in the event of a costs award. This will mean employers will no longer be able to rely on employee reticence to bring a claim and a more proactive approach to compliance is likely to be needed to avoid enforcement action and fines. For a more detailed look at how the introduction of the FWA may change the regulatory and enforcement landscape for employers, see our recent article here.
• Various other changes – the amendments also cover other topics, including introducing a requirement for employers to keep records for six years to evidence compliance with paid holiday entitlements under WTR 1998; various amendments to trade union legislation (see our article here for further details); enhancing the regulation of umbrella companies; and potentially introducing miscarriage bereavement leave.

The ERB is now in the House of Lords and further amendments may be made. Notwithstanding future amendments, the ERB (and accompanying regulations) will bring about significant changes for employers. Some of the ERB’s provisions will represent a complete shift in current practices and employers should consider taking preparatory steps to ensure they are ready for when the changes come into effect.

If you’d like to discuss how our Employment team can support your business in preparing for the ERB coming into force, please contact Robert Forsyth.

The Data (Use and Access) Bill (DUA Bill) proposes several reforms to the UK’s data protection framework and is expected to receive Royal Assent later this year. The House of Commons decision not to include amendments proposed by the House of Lords which were intended to ensure operators of web-crawlers’ compliance with UK copyright law has led to a wave of calls for the Government to reconsider its position. At the time of writing, we wait to see whether the Government will revise its position.

In the meantime, in this article, we look more closely at some of the key changes which the DUA Bill will introduce to UK data protection law.

Key changes to data protection law introduced by the DUA Bill

1. Examples provided of “legitimate interests” for processing

The DUA Bill recognises that organisations are unsure about whether their purpose for processing will constitute a “legitimate interest”, which is one of the six lawful bases for processing personal data under UK GDPR. A new Article 6(11) sets out a non-exhaustive list of examples of activities which are more likely to constitute a legitimate interest.

The examples include processing that is necessary for direct marketing, intra-group transmission of personal data where necessary for internal administrative purposes, and processing necessary for the purpose of ensuring the security of network and information systems.

2. “Recognised legitimate interests” as a new lawful ground for processing

The DUA Bill also introduces a new lawful ground for processing. Under UK GDPR, data controllers are required to conduct a balancing test to determine if their legitimate interest in processing an individual’s personal data is overridden by the individual’s rights and interests. Following the DUA Bill, if processing is necessary for the purposes of a “recognised legitimate interest“, then data controllers will not need to conduct a balancing test.

Examples given of recognised legitimate interests include where the processing is necessary for the purposes of national security, public security and defence, responding to an emergency, detecting, investigating and preventing crime and safeguarding vulnerable people.

3. Processing for the purposes of scientific research

Scientific research is a special purpose that is granted various exemptions under UK GDPR. The DUA Bill introduces a broader definition of scientific research, to include research that “can reasonably be described as scientific“. It does not matter whether the research is publicly or privately funded or whether it is carried out as a commercial or non-commercial activity.

4. Relaxing the rules regarding automated decision-making

Automated decision-making is the process of making a decision by automated means, without any human involvement. Whilst this can bring benefits such as increased efficiency, the current UK GDPR prohibits automated decision making other than in a few specific cases.

Under the DUA Bill, the current prohibition is relaxed (provided that suitable safeguards are in place) to only apply where special category data is involved.

5. Relaxing the rules regarding international data transfers

The DUA Bill introduces changes that will enable personal data to flow more easily from the UK to other countries that offer the same level of protection. The Secretary of State will use a new “data protection test” to assess the standard of data protection in another country in the context of international transfers. The test looks to ensure that the level of protection in that country is not “materially lower” than in the UK.

The test will consider the wider context of the data transfer between the UK and another country, and how the data transfer may benefit the UK.

6. A new process for submitting complaints

The DUA Bill provides greater clarity for organisations regarding how to respond to complaints.

Organisations must put a complaints process in place, and data subjects must submit their data protection related complaints to the organisation in the first instance. The complaint can only be escalated to the Information Commissioner if it has not been addressed adequately by the organisation.

7. A new process for responding to data subject access requests (DSARs)

The DUA Bill sets out an “applicable time period” and procedure for responding to DSARs in certain circumstances, for example, an extension may be necessary due to the number of requests a data subject has submitted or, where the data controller requires further information to proceed with the response.

The DUA Bill also clarifies that controllers only need to carry out “reasonable and proportionate” searches for information and personal data in response to a DSAR. This seeks to reduce the administrative burden and cost of responding to a DSAR.

8. Increased fines for e-privacy breaches

The DUA Bill proposes an increase in potential fines for breaches of the Privacy and Electronic Communications Regulations, including cookie and e-marketing breaches (such as predatory marketing calls which often target those at most risk of harm). Currently, the penalties for such breaches are limited to a maximum of £500,000. The DUA Bill increases these fines to align with the maximum under the Data Protection Act 2018 and UK GDPR, meaning that breaches can incur a penalty of up to £17.5 million or 4% of global turnover.

9. Relaxation of cookie consent requirements

The DUA Bill includes updates to the consent requirements for storage and access of people’s terminal equipment (the ‘cookies’ rule). This seeks to simplify the cookie regime, as it means that organisations need consent for fewer low-risk purpose cookies. This should reduce consent fatigue and allow organisations to more easily collect information for statistical purposes and to improve their websites.

Examples of where cookies can be used without consent are to prevent or detect fraud or technical faults in connection with the provision of the service requested, to collect information for statistical purposes to make improvements to the service or to provide emergency assistance.

Conclusion

The Government’s objective with the DUA Bill has been to balance a pragmatic approach aimed at easing compliance burdens for organisations and the Public sector whilst not presenting a risk to the UK’s adequacy status for data flows between the UK and the EU. The UK’s supervisory authority, the Information Commissioner’s Officer has welcomed the proposed changes and confirmed that, in his view, “the proposed changes in the Bill strike a positive balance and should not present a risk to the UK’s adequacy status“.

For further advice on the proposed changes to UK GDPR, or more generally in relation to data protection law compliance, please contact Anne Todd, Moya Smith or other members of our Data Protection & Privacy team. We also offer a range of data protection training which can be tailored to meet your requirements.

This article is for general information only and does not, and is not intended to, amount to legal advice and should not be relied upon as such. If you have any questions relating to your particular circumstances, you should seek independent legal advice.