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The Renters’ Rights Bill – What it could mean for lenders?

Posted on: May 8th, 2025 by Natasha Cox

The Renters’ Rights Bill (‘the Bill’) is currently making its way through the House of Lords. While there has been growing opposition to the Bill, with over 300 amendments being proposed, the Bill could still prove to be a welcome change for lenders.

Purpose of the Bill

The Bill has been introduced to:

  • give greater rights and protections to people renting their homes
  • provide tenants with the flexibility to leave substandard properties

In short, it is intended to:

  • Reform tenancies
  • Strengthen tenants’ rights
  • Create a landlord redress scheme
  • Create a private rented sector database
  • Create a legal standard for property conditions
  • Expand enforcement powers


The potential impact of the Bill on lenders

Currently, there are two options available to recover vacant possession of a property subject to an assured shorthold tenancy, namely:

  • Serving a notice under section 21 of the Housing Act 1988 (‘HA 1988’)
  • Serving a notice under section 8 of the HA 1988

Section 21 Notice

Also known as a ‘no-fault’ eviction, this is used where a tenancy is coming up to expiry or has already expired.

As a result of Trecarrell v Rouncefield [2020], if the landlord is unable to evidence compliance with the various prescribed requirements, then simply put, they will not be granted a possession order.

Section 8 Notice

A notice under this section can be used in two situations:

– where the tenant has breached the terms of the tenancy, or

– where a lender requires vacant possession of the property for the purpose of exercising their power of sale and is bound by a tenancy postdates the loan.

Notices under Section 8 of the HA 1988 are restrictive for lenders requiring vacant possession. Many grounds under this section can be remedied and it is otherwise limited to tenancies which postdate the loan. In addition, a landlord (borrower) should have also served a notice on the tenant confirming they can rely on this ground to obtain vacant possession (albeit the court has discretion to dispense with this requirement).

 

What the reform could mean for lender’s enforcement

The reform will essentially simplify a lender’s ability to take possession of a property subject to a tenancy.

The intention is to abolish assured shorthold tenancies (and as a consequence, ‘no-fault’ eviction notices) under Section 21 of the HA 1988, and to amend Ground 2 of Schedule 2 of the HA 1988 so that it reads as follows:

The dwelling-house is subject to a mortgage and –

(a) the mortgagee is entitled to exercise a power of sale conferred on him by the mortgage or by section 101 of the Law of Property Act 1925; and

(b) the mortgagee requires possession of the dwelling-house for the purpose of disposing of it with vacant possession in exercise of that power.

For the purposes of this ground “mortgage” includes a charge and “mortgagee” shall be construed accordingly.

This means that lenders will be able to rely on this section whether the tenancy predates or postdates the loan, provided the lender requires vacant possession for the purpose of exercising their power of sale. They need no longer be concerned about evicting a tenant when they are unable to comply with the requirements for prescribed information for tenant deposits and the Deregulation Act 2015, viz. the provision of the How to Rent Guide, EPC, Gas and Electrical Safety Certificates. The main contention under the reform is that tenants will be afforded a four-month notice period, which some lenders may accept as a small quid pro quo.

It is recommended that lenders continue to ask the right questions and continue to carry out their due diligence in respect of tenancies. In terms of lending in the short term/alternative lending space, which is often time critical, such potentially arduous and frustrating requirements need no longer be so. Lenders will now have the flexibility to take a view, knowing that it will not compromise their ability to secure vacant possession should they need to enforce the terms of their loan.

For more information on our Real Estate Disputes services, please click here.

Angélique Richardson discusses the legal and reputation risks of doping in City AM

Posted on: May 7th, 2025 by Natasha Cox

Writing in City AM, Associate Angélique Richardson discusses the return of tennis star Jannik Sinner following his three-month suspension for failing two “in-competition” drug tests and analyses the legal and reputational risks arising from anti-doping violations.

Angélique’s article was published in City AM, 7 May 2025, and can be found here.

Jannik Sinner and anti-doping bans in tennis: how players can mitigate risks

Jannik Sinner’s re-appearance at the Italian Open guarantees attention, following his three-month suspension for failing two “in-competition” drug tests during and eight days after Indian Wells last year, for the banned anabolic steroid clostebol.

Ranked world No1, the three-time Grand Slam winner’s return to competitive tennis at his home tournament this week is a reminder of the legal and reputational risks arising from anti-doping violations.

Sinner was charged with an anti-doping rule violation by the International Tennis Integrity Agency, which enforces the World Anti-Doping Code 2015 through the Tennis Anti-Doping Programme (“TAPD”).

According to the TAPD, a first in-competition rule violation carries a four-year ban, reduced to two if proven unintentional. The ban could be eliminated if the player proves “no fault or negligence”, meaning that they couldn’t have reasonably known or suspected they had used a prohibited substance.

Sinner and his team never denied the substance was in his system. Thei argument was that his fitness coach purchased an antiseptic spray which contained clostebol.

While Sinner was at Indian Wells, his physio accidentally cut his hand and used the fitness coach’s antiseptic spray daily to treat the cut. The physio massaged Sinner without wearing gloves or washing his hands, and the substance entered Sinner’s system through the cut. They claimed Sinner bore no fault or negligence.

Initially, this version of events was accepted by the independent tribunal. The World Anti-Doping Agency (WADA) appealed the decision to the Court of Arbitration for Sport in Switzerland and reached a case resolution agreement with Sinner for a three-month ban, which elapsed on Sunday.

This case, while resolved, highlighted numerous issues faced by professional athletes.

Sinner’s reputation and integrity have been called into question, including by fellow player Novak Djokovic, and future potential sponsors and partners may be wary.

Many commercial deals with brands contain anti-doping clauses which enable them to terminate the agreements when an athlete is alleged to have committed an doping violation. Sinner may find some of these clauses triggered.

Stars like Jannik Sinner ‘must be proactive’

The ease of cross-contamination is clear. Sinner was contaminated by his physio, but the same could happen when sharing equipment with others who have used a prohibited substance, touching friends and family who have used a prohibited substance or using untested supplements.

A recent study commissioned by Sport Integrity Australia showed that, of the 200 supplements tested, 35 per cent contained WADA-prohibited substances. Athletes assume the ingredients listed in supplements are accurate, but this is not always true.

So, what can be done? Better education is needed about the risks associated with supplements, including via seminars, clubs, online resources and support teams.

Athletes can further mitigate risks by using Informed-Sport Certified supplements, staying up-to-date with substances on the prohibited list, and ensuring that nutritionists and staff members are fully trained. Instructing a sports lawyer with a specialism in doping is a no-brainer.

In the event of an anti-doping rule violation notice or charge, athletes should talk to a legal specialist. Sinner and WADA reaching an agreement on a three-month ban came thanks to the specialist anti-doping knowledge of his lawyers, who will also be working hard to ensure as few commercial deals are impacted as possible.

Athletes and their teams need to proactively reduce risks. An apology won’t get you out of trouble. Regardless, Sinner will hope that it is his tennis, rather than his lawyers, doing the talking at the Italian Open.

For more information on our expert services for athletes and sportspeople, please click hereanti-doping.

Matt Green discusses UK crypto innovation and regulation in The Times

Posted on: April 24th, 2025 by Natasha Cox

Writing in The Times, Director and Head of Blockchain and Digital Assets, Matt Green, argues that the UK government needs to adopt a clear big picture strategy on implementing blockchain technology if it is to maintain parity with competitors.
 
Matt’s article follows a recent letter he co-signed as chair of techUK’s Blockchain and Digital Assets working group, alongside a coalition of leading UK and global trade bodies in the crypto sector to the UK government urging them to advance its digital asset and blockchain policy.

Matt’s article was published in The Times, 24 April 2025, and can be found here.

Government must urgently delivery regulatory clarity for cryptoassets

It is roughly six months since the digital assets industry called on the Labour government to provide urgent “regulatory clarity” at the party’s annual conference. The then economic secretary to the Treasury, Tulip Siddiq, responded by confirming the government’s commitment to fostering innovation in financial services, but there is little meat on the bone.

It has also been three years since the previous government’s plan to make the UK a global cryptoasset technology hub. This ambiguity serves no one.

Helpfully, the Financial Conduct Authority (FCA) has since published key dates in a ‘crypto roadmap’ that details the development of comprehensive regulatory framework for the UK. Draft legal provisions are expected soon, with a series of consultation papers examining how the future regime will work and its content – such as stronger regulation for capital, liquidity and risk management of cryptoassets – to come. The roadmap anticipates that the rules will take effect late next year.

While that is welcome, the UK needs clarity and momentum to boost investment, growth and jobs, and to avoid falling behind competitors such as Singapore, the UAE or the US in technology investment and innovation. If the government is serious about making crypto a strategic priority, it should mirror the US by appointing a crypto special envoy – President Trump has appointed David Sacks, the former senior executive at PayPal, to that role.

The UK desperately needs a comparable appointee who can drive policy alignment, assimilate industry innovation and ensure that regulation and legislation are formulated and drafted with the UK’s best interests.

Our government also needs a plan that will focus on identifying opportunities and attracting investment. These could include an incentivisation programme to attract businesses with significant potential, explore elements of public sector integration and create a competitive tax and investment landscape.

Recognising the symbiosis of blockchain, artificial intelligence and quantum computing and their potential value is vital, both for preparing future regulatory frameworks, and considering use in daily life. Ultimately, this will improve efficiency for a swathe of crucial public services. Consider how the Land Registry and Companies House could hold important documents on the blockchain to simplify and accelerate property and share transfers. Key government procurement contracts and transmission of NHS data could also be transformed. 

According to the FCA, 12 per cent of UK adults – about 7 million people – owned cryptoassets last year. In contrast, according to the most recent data, only 8 per cent of global venture capital funding went into UK firms that specialise in that field, while the US dominates with 76%.

A clear direction, guided by a singular politically and sector agnostic driver, and with clear regulatory framework, could transform the UK economy for decades to come.

 

 

‘Gender critical’ belief discrimination – where are we now?

Posted on: April 24th, 2025 by Natasha Cox

Four years ago, the concept of discrimination based on ‘gender critical’ beliefs was unheard of. However, the 2021 decision of Forstater v CGD Europe & Ors paved the way for protection under the Equality Act 2010 for individuals holding gender critical beliefs.  

Despite Forstater, there has been a slew of employment tribunal cases brought by individuals claiming their belief that sex is biological and immutable led their employers to subject them to less favourable treatment. These claimants worked in areas including the NHS, local government, charities, the education sector and even the legal profession. With trans rights supporters claiming that such beliefs are transphobic and hateful, many employers have been confused as to their obligations and fearful of ‘getting it wrong’.

Most recently, in For Women Scotland v The Scottish Ministers it was held that ‘sex’ within the Equality Act 2010 means biological sex, reigniting tensions about the interplay between the rights of trans people and the rights of biological men and women. With the Supreme Court’s decision hot off the press, this article summarises some of the key cases and legal principles that have emerged in recent years, helping employers to be confident in their decisions about balancing the rights of all parties to be treated in a way compliant with the Equality Act 2010 and help them to ensure everyone enjoys dignity and respect at work.

Forstater v CGD Europe & Ors (2022)

Maya Forstater’s consulting contract with the Centre for Global Development was not renewed after she published a series of social media messages describing transgender women as men. She brought claims of discrimination, with the employment tribunal initially ruling against her. However the Employment Appeal Tribunal later found that her beliefs were protected under the Equality Act 2010 because they were “worthy of respect in a democratic society“. At a subsequent hearing, the tribunal concluded Ms Forstater had suffered direct discrimination on the basis of her gender-critical beliefs and she was awarded compensation of over £105,500 including for loss of earnings, injury to feelings, aggravated damages and interest.

Bailey v Stonewall Equality Limited Garden Court Chambers & Ors (2022)

Barrister Allison Bailey claimed she was discriminated against for her gender-critical views after Garden Court chambers concluded that two of her personal tweets, which included gender critical views, potentially breached her professional obligations as a barrister. Bailey had co-founded LGB Alliance, an advocacy group for the rights of lesbian, gay and bisexual people, which opposed the ‘trans extremism’ it said Stonewall promulgated. Ms Bailey complained to colleagues about Garden Chambers becoming a Stonewall Diversity Champion, saying that Stonewall was complicit in a campaign of intimidation of those who questioned gender self-identity. The tribunal found that Garden Court had discriminated against Ms Bailey and she was awarded £22,000 compensation for injury to feelings, plus interest.

Fahmy v Arts Council England (2023)

Denise Fahmy attended an internal teams meeting where hostile comments were made about people who hold gender critical beliefs. This was in the context of a discussion about the award and removal of a grant to LGB Alliance. A petition was later circulated in which further hostile and intimidating comments were made, leading Ms Fahmy to raise a Dignity at Work complaint, which was not upheld. Leeds Employment Tribunal found in favour of Ms Fahmy, concluding that she had been harassed for her gender-critical beliefs, and shortly afterwards, the parties reached settlement for an undisclosed sum.

Phoenix v Open University (2024)

Joanna Phoenix, a professor, co-signed a letter to the Sunday Times in 2019 in which she made her gender critical beliefs known. She, with others, then established the Gender Critical Research Network, an academic research group promoting research into sex and gender from a gender critical perspective. As a result, she was harassed and discriminated against by colleagues, including in one instance the Deputy Head of Department likening her to “the racist uncle at the Christmas dinner table“. The employment tribunal found that her complaints of direct discrimination and harassment were well-founded and that she had been constructively unfairly (and wrongfully) dismissed. Shortly afterwards the parties reached settlement for an undisclosed sum.

Adams v Edinburgh Rape Crisis Centre (2024)

Roz Adams worked as a counsellor at Edinburgh Rape Crisis Centre. Ms Adams held gender critical beliefs and believed that victims of male sexual violence should be able to choose whether to engage with male or female counsellors. In 2021, the centre appointed a trans woman to the post of CEO. Ms Adams warned that giving ambiguous answers to victims who wanted to know the sex of their counsellor could mislead them or lead them to self-exclude from the service. The issue escalated when a colleague announced they were non-binary and changed their name to one that sounded male. Ms Adams asked her manager for clarity on how she should respond if service users asked if the colleague was male, which along with her observations about language used regarding gender critical people (including ‘terf’, bigot and fascist’) led to a deeply flawed disciplinary process against Ms Adams. She resigned, alleging constructive dismissal and discrimination. Delivering a scathing judgment, the tribunal concluded that Ms Adams had been discriminated against and constructively dismissed due to her gender-critical beliefs. Ms Adams was awarded compensation of £68,990 and Edinburgh Rape Crisis Centre was ordered to publish a statement apologising.

Meade v Westminster City Counsel and Social Work England (2024)

Rachel Meade, a social worker, posted on a Facebook profile (that was set to private with approximately 40 friends) expressing her gender critical beliefs. One of Ms Meade’s colleagues complained to the regulator about these posts, alleging that they were transphobic and that Ms Meade had deliberately shared posts containing misinformation about the trans community. Following an investigation into the complaint, Ms Meade was told that there was a reasonable prospect that her Fitness to Practise would be found currently impaired because of her ‘discriminatory activity’ on Facebook. She was told that she could either accept the report and a sanction of a one-year warning or have her case referred to a hearing. She chose the former. Ms Meade’s immediate managers confirmed they had no concerns about her practice but she was subsequently suspended on charges of gross misconduct and ultimately issued with a final written warning. The tribunal found that Ms Meade had been harassed on account of her gender critical beliefs, awarding her over £58,000, including aggravated and exemplary damages, reflecting the extent of the wrongs committed by the Respondents.

Frances v Department of Culture, Media and Sport and the Department of Science, Innovation and Technology (2025)

Ms Frances brought claims of constructive dismissal on the basis of her gender-critical belief and also on a separate philosophical belief in the integrity of the civil service. The claims were settled early, but this case was highly unusual in that there was no confidentiality around the settlement, including its high value (£116,000). It also resulted in public statements from two Whitehall permanent secretaries, committing their respective departments to significant redrawing of policies around sex and gender. This case helped to buck the previous trend of litigating gender critical belief cases until the bitter end, following settlement in the cases of Esses v The Metanoia Institute and the UK Council of Psychotherapy and Favaro v City, University of London.

Higgs v Farmor’s School (2025)

Kristie Higgs, pastoral administrator and work experience manager at a school, was dismissed for posts she made on her Facebook profile opposing the view that ‘gender is fluid and not binary’, contending that same-sex marriage cannot be equated with traditional marriage between a man and a woman. A complaint was made by a parent, leading to MS Higgs’ suspension and eventual dismissal. Ms Higgs claimed direct discrimination and harassment. While her claims were initially dismissed on the basis that it was the manner of expression that had caused her dismissal, not her beliefs themselves, the Employment Appeal Tribunal granted her appeal and remitted the case back to the tribunal. Ms Higgs appealed to the Court of Appeal, which ultimately ruled that Ms Higgs’ dismissal constituted unlawful discrimination on the grounds of religion or belief, emphasising that dismissing an employee merely for expressing a protected belief is unlawful unless the manner of expression is objectionable and the dismissal is a proportionate response.

What should employers be doing in light of these decisions?

It is clear that employers that conduct or condone discrimination against workers with gender critical beliefs are likely to find themselves on the wrong end of an employment tribunal judgment. While this precedent is well established, the recent decision in For Women Scotland has once again brought to the fore the issue of competing protections under the Equality Act 2010. While there is a surfeit of misinformation circulating online that the Supreme Court has ‘removed’ or ‘weakened’ the rights of transgender individuals in favour of those who hold gender critical beliefs, this is incorrect. The law today is the same as it was before last week’s decision and discrimination against trans people for reasons relating to gender reassignment remains unlawful, as does discrimination against those holding gender critical beliefs. However, because of the misrepresentation of the law on this highly emotive topic, many organisations are confused and fearful. Nevertheless, businesses must take a step back from the online noise and focus on a common-sense approach that treats everyone with dignity and respect.

Employers ought to remember that inclusion is for everyone and that there is nothing discriminatory in recognising that the protected characteristics of sex and gender reassignment relate to groups that have different needs and vulnerabilities. Employers should avoid making statements that disagree with the Equality Act 2010 or the Supreme Court judgment, or that favours or prioritises particular groups. This may lead to claims of sex-based harassment and discrimination as well as discrimination on the grounds of religion and belief.

It is possible to treat trans people with dignity and respect while also applying the Equality Act 2010 definition of sex, and remaining compliant with it. While it may be tempting to seek to avoid conflict, making all spaces ‘gender neutral’ is likely to garner complaints, as well as being in breach of workplace health and safety legislation. It may also be tempting to take situations on a case-by-case basis, but this is likely to lead to non-compliance with the Equality Act 2010 and could lead to employment tribunal claims by workers who expect to be able to access single sex spaces for reasons of privacy and dignity.

It is recommended that employers review their policies and training to assess and act on the risk that what they currently have is unlawful. Policies not based on the Equality Act 2010’s definition of sex are likely to result in unlawful conduct for which employers may be sued in the employment tribunal. Clear language should always be used and the normal standards of workplace and professional conduct must be applied to everyone equally. Set clear expectations around conduct and do not tolerate offensive behaviour in the workplace, whatever the protected characteristic in question. Businesses may see a rise in grievances relating to this topic and while proper grievance policies should always be followed, employers should not entertain vexatious or unreasonable complaints and may need to consider invoking their disciplinary policy for repeat offenders.

If you would like support and advice on making certain that your policies and handbooks ensure your employees are protected, please contact a member of our Employment team.

Alienating behaviour: Where are we now?

Posted on: April 17th, 2025 by zhewison

Jim Richards, gives us the latest insights on alienating behaviour in family law. In this article he breaks down the Family Justice Council’s 2024 review and what it means for handling parental alienation cases.

In December 2024, the Family Justice Council (FJC) published a comprehensive review on parental alienation and alienating behaviours. This long-debated issue has now been addressed with clear guidance aimed at assisting judges, and those in litigation in dealing with allegations of this nature.

A new approach to parental alienation

The FJC’s guidance marks a significant shift in how parental alienation is approached. It confirms that there is no “syndrome” of parental alienation. Instead, the focus should be on the behaviour, context, and reasons why a child is reluctant, resistant, or refuses to spend time with one parent.

The test for alienating behaviour

The guidance outlines a three-part test for identifying alienating behaviour:

  1. The child is reluctant, resists, or refuses to engage with a parent.
  2. This reluctance is not due to the behaviour of that parent towards the child or the other parent.
  3. The other parent has behaved in a way that has led directly or indirectly to the child’s reluctance to engage in a relationship with the other parent.
    All three elements must be present for a finding of alienation.

Moving away from past practices

This new approach moves away from the previous tendency to use alienation as a catch-all explanation for a child’s reluctance to spend time with a parent. The courts will no longer entertain this approach, especially if there is any finding of domestic abuse.

The role of the court

The report emphasises that the court is the ultimate decision-maker in these cases. Experts and Cafcass (Children and Family Court Advisory and Support Service) cannot determine whether specific events took place. It is the court’s role to decide if domestic abuse or alienating behaviours have occurred. Allegations must be supported by evidence; fake assertions will not suffice.

The importance of early action

Relevant issues must be raised early in the process, with appropriate case management directions given. It is not acceptable to introduce allegations late in the proceedings to strengthen a weak case.

Looking ahead

The development of case law in this area will be closely watched, and further guidance from the courts is anticipated.

If you would like to learn more about alienating behaviours and how they may impact your case, please contact our family law team. We are here to provide expert advice and support.

Dominic Holden explores the Home Office consultation on ransomware payments, in Law360

Posted on: April 10th, 2025 by Natasha Cox

Director Dominic Holden examines the recent Home Office consultation on cyber attacks and banning ransom payments by public bodies and critical infrastructure operators, and discusses the potential impact of such reforms on SMEs, in Law360.

Dominic’s article was published in Law360, 9 April 2025. 

On 14 January 2025, the Home Office opened a consultation on proposals to ban ransom payments by publicly owned bodies and operators of critical national infrastructure that have or may have suffered a ransomware attack[1]. The consultation runs until 8 April 2025, and the government seeks input from potential compliance stakeholders, industry, research, and the public.

The overall aim is to tackle the multi-billion-pound cybercrime industry, and the specific objective is potentially to make vital infrastructure like hospitals and the National Grid an unattractive prospect for hackers.

Yet, these proposals are not without their flaws.

The below article examines these plans, explores the development of the ransomware industry, and discusses how such reforms could impact UK businesses.

What is ransomware?

Ransomware is a type of malware that attempts to unlawfully encrypt files on a host computer system. Once infected, critical IT networks can become crippled and inoperable. The hacker then promises to provide the key to unlock the files in return for money, typically in cryptocurrency.

These attacks can be particularly harmful due to the associated financial losses, theft of potentially sensitive data and intellectual property, as well as significant business/service disruption and reputational damage.

Growing threats

One of the key triggers for this consultation exercise appears to have been the Synovis ransomware attack in June last year, which caused severe damage to the NHS with the postponement of over 10,000 outpatient appointments and around 1,700 elective procedures in London.[2]

Ransomware attacks are a growing threat. Over a period of twelve months which ended in August 2024, the UK’s National Cyber Security Centre’s (NCSC) became involved in managing 430 cyber incidents including 13 separate ransomware incidents which were “deemed to be nationally significant and posed serious harm to essential services or the wider economy”. According to the National Crime Agency, the number of UK victims appearing on ransomware data leak sites has also doubled since 2022[3].

As a result, ransomware is viewed by the National Crime Agency as one of the most serious organised cybercrime threats to the UK’s national security.

These attacks have now become highly profitable. In 2024, one study revealed that UK respondents paid an average of £870,000 with two organisations admitting to paying £10m-£20m in ransoms[4]. According to Sophos (which specialises in endpoint security), the median global ransomware payment made by victims over the past couple of years has also increased by 400% up from $400,000 to $2 million. Meanwhile the recovery costs to victims of a ransomware attack have also increased from $1.82 million to $2.73 million – a rise of around 50%[5].

Whether the ransom is paid or not, regulators and customers will very likely need to be notified of the attack under existing legislation, leading to the threat of an investigation, fines, claims and significant damage to an organisation’s reputation as their customers and suppliers learn of the attack.

The question of how to meet this threat faces governments across the globe.

Exploring the Home Office proposals

Banning ransomware payments

The idea of banning ransomware payment by certain organisations could be an effective deterrent to reduce ransomware attacks, with hackers looking elsewhere – hopefully overseas – for easier pickings that are permitted to pay out. The policy would follow the long-standing principle of the UK Government not to pay ransoms for its citizens taken hostage by terrorists.

However, a ban could be damaging to businesses. Paying a ransom can often be the fastest and most cost-effective way for an organisation to recover from these attacks.

The alternative to non-payment is trying to reset and restore an organisation’s system from backup (assuming regular backups exist) and a potentially catastrophic data loss. The business disruption that follows can be ruinous, both financially and reputationally.

According to Veeam’s 2024 Ransomware Trends Report, 96% of security professionals surveyed said that their backup repositories had been targeted, while a mere 15% were able to recover their data without paying a ransom[6].

That said, paying a ransom can be a risky business. The same report found that 27% of those organisations who had paid the ransom, were still unable to recover their data. In other words, while paying up might seem to offer a quick solution, there is no guarantee that it will resolve the problem.

‘Double dipping’ poses a further risk for victims. In such cases, a ransom is paid only for a further attack to follow a few days later. Or, even worse, an additional ransom is demanded to avoid the hacker publishing the compromised data or selling the information to the highest bidder.

This poses the question of whether the Government’s proposed limited ban goes far enough.

The focus on publicly owned bodies and operators of critical national infrastructure is a good start, given the obvious disruption that stems from the paralysis of these organisations. However, the policy risks hackers moving their attention away from these organisations, focusing their efforts on private companies who would still be permitted to pay a ransom. This could be particularly devastating for SMEs – which make up around 99.9% of the UK economy, but who lack the resources to mount an effective defence against, and response to, a ransomware attack[7].

A limited ban is not the only measure under consideration.

Reporting of all ransomware attacks

The mandatory reporting of all ransomware attacks by companies that meet a certain threshold is also proposed. This proposal is similar to that which has already been proposed in the Cyber Security and Resilience Bill, which is due to be put to Parliament this year.

The purpose of the reporting is to assist law enforcement agencies by giving them a better understanding of the scale and nature of attacks, in order to identify patterns and improve responses to such attacks, and stop them from spreading.

This would appear to be an obvious ‘win’. The more up-to-date information available, the better the future decision-making on how to combat the threat.

The question which then arises, however, is whether the Government will properly resource the authorities who will receive this data, to allow them to take effective steps to respond.

Decision to pay a ransom

Finally, the Home Office proposes that the decision to pay a ransom could be left to the authorities.

The idea of the authorities needing to approve (or not) the payment of ransoms, is likely to be unworkable. It assumes a level of dynamism and responsiveness from Government authorities that is unlikely to be achieved in practice. Taking this decision out of the hands of those who know the organisation and the data at risk best, would seem to be ill-advised.

It also remains to be seen how the Government proposes to enforce legislation against the payment of ransoms. Criminalising the victims of a ransomware attack for making a ransom payment would seem to be unduly punitive given that these organisations are the innocent parties in this situation.

The Government may consider substantial fines to be a more appropriate sanction in line with current legislation around data, such as the UK General Data Protection Regulation/Data Protection Act 2018.

Conclusion

It is clear that the time has come for decisive action to be taken in the battle against ransomware attacks, and the Home Office’s initial focus on critical infrastructure and the public sector is a welcome first step.

However, the consultation is light on detail as to the how the Government intends to enforce compliance, and around the resources that will be available to ensure the reporting of ransomware attacks informs an effective strategy to prevent these attacks from occurring and spreading.

If a limited ban on ransom payments is introduced, it is incumbent on the Government to ensure that support will be provided to soften the increased business interruption that will invariably follow in the private sector.

While these proposals rumble throughout Westminster, there are still steps businesses can take to improve their chances of avoiding an attack, or ensure they are able effectively to deal with one when it comes.

Training staff to identify potential ransomware and other cyber-attacks along with regular system checks, backups and patching, can be essential in mitigating against these threats. Cyber insurance can also provide valuable support and resources to deal with the consequences of an attack, along with a robust incident response plan which deals with how the business can operate in the face of a ransomware event.

For more information on our services relating to technology disputes, please see here

[1]                 https://www.gov.uk/government/news/world-leading-proposals-to-protect-businesses-from-cybercrime

[2]                  https://www.england.nhs.uk/london/synnovis-ransomware-cyber-attack/latest-media-statement-on-synnovis-cyber-attack/#:~:text=As%20a%20result%20of%20the,St%20Thomas’%20NHS%20Foundation%20Trust.

[3]                  https://www.gov.uk/government/news/world-leading-proposals-to-protect-businesses-from-cybercrime#:~:text=The%20NCSC%20managed%20430%20cyber,services%20or%20the%20wider%20economy.

[4]                 Over Half of Breached UK Firms Pay Ransom – Infosecurity Magazine

[5]                  https://assets.sophos.com/X24WTUEQ/at/9brgj5n44hqvgsp5f5bqcps/sophos-state-of-ransomware-2024-wp.pdf

[6]                  https://www.primesys.co.uk/wp-content/uploads/2024/10/Veeam-2024-ransomware-trends-report.pdf

[7]                  https://www.gov.uk/government/statistics/business-population-estimates-2023/business-population-estimates-for-the-uk-and-regions-2023-statistical-release

Crypto recovery – navigating the first 72 hours

Posted on: April 8th, 2025 by Natasha Cox

When a person goes missing, the first 72-hours are mission critical.

The same urgency applies if you have been hacked, scammed or are the victim of a theft- even more so if the loss are crypto assets. Quick and decisive action in the immediate hours will significantly mitigate the risk of those assets being obfuscated and dissipated and assist with recovery.

Crypto scammers are particularly ruthless, often deploying all manner of sophisticated tactics. From straightforward account compromises and theft with no direct interaction, to elaborate social engineering, often gaining trust through dating websites, fake investment platforms, or social media, their ultimate aim is to deprive a rightful owner of crypto assets.

Discovering that you have been the victim, regardless of the methodology used, can be emotionally draining as well as financially devastating. Clarity of thought and rational action can often give way to absentmindedness. This can lead to victims continuing to pay the bad actors, or fake recovery firms who are one and the same.

In the circumstances this is entirely understandable.

The appropriate next steps can vary depending on the specific circumstances, however our recommended action plan is detailed below and applies to most scenarios:

  1. Secure your communications

Often, particularly in cases where victims have been socially engineered, your email addresses and social media accounts will likely have been compromised as the result of the hack.

Most mainstream email providers will allow you to see a log-in history which details the IP address and location of all log-in attempts. Consider if any are unrecognisable.

If there are any suspicious log-ins, it is likely that your email address has been compromised and your communications may be monitored by the scammers. This could also impact other personal and financial accounts linked to your email, such as online shopping accounts, bank accounts and social media profiles. Credit ratings and access to future baking facilities may also be affected.

In this case, it is vital that you immediately change the password for your email, and then for all other accounts held online.

In addition, we recommend that you set up a new, secure email address immediately and avoid logging into any accounts you suspect may have compromised. You should divert any personal and critical emails to your new account, and ensure that you update your email address across your online shopping, social media and bank accounts.

It is important that you notify your bank and or cryptocurrency exchange of your new email address, which replaces the old one, and ensure to communicate that no instructions are to be taken from the old email address.

  1. Cease communications strategically

In cases where scammers have maintained prolonged contact, they may continue to reach out to you. Let them remain unaware you know this is a fraudulent scheme. If they know that you are aware, there is a heightened risk that they will take steps to obfuscate their trail and dissipate assets, which can make asset recovery more complicated.

If you can, you should look to cease communication strategically without encouraging further interaction. One approach might be to indicate you will be unavailable or away for a few weeks. This will hopefully give you and your legal team time to investigate and trace the assets, write to any centralised exchanges who may be in receipt of those assets, and put them on notice of the theft and request that they freeze those accounts pending further legal action.

In short, the longer the scammers believe that their scam is undetected, the better.

You should then immediately begin collating a detailed record of all previous communications, including requests for payments, emails, phone calls, text messages, social media interactions, transaction details, wallet addresses and transaction hashes etc. Accurate records are crucial for any subsequent legal action and investigations. If you have been directed to a webpage during your interactions with the scammers, you should ensure to take screenshots of these pages in case they disappear.

Evidence of what jurisdiction they may be in is also vital. For example, note of their telephone number and dialling code (e.g. +44 for UK) or mention of a registered office (even if untrue) will help dramatically.

  1. Report to law enforcement

As soon as possible, you should report the theft to the police and Action Fraud – or equivalent law enforcement agencies. Make sure you keep a copy of your report, as well as any crime reference numbers provided.

It is important that you engage with your local police force as much as possible, and obtain a direct liaison and contact details. Action Fraud is only a database, and your query will not progress unless the police investigate.

Try not be discouraged or frustrated if the police cannot offer much help. Police resources, expertise, and capacity to deal with crypto related crimes can vary considerably, and officers may lack immediate familiarity with blockchain technology, or the complexities involved

Even if the police are unable to offer much direct assistance, formally reporting the incident is a crucial step as it creates an official record that supports any subsequent legal and recovery actions you may take with the support of your legal team.

  1. Device management and evidence preservation

Given that so much of our lives are conducted online and contained within personal devices such as laptops and mobile phones, it is crucial to exercise heightened caution if these devices may have been compromised.

If you notice unusual behaviour or unexpected activity on your devices (for example, unprompted command prompt windows opening up for split seconds, or excessive system resources being used when your device does not appear to be doing much) then this may be an indication your device may be compromised.

This is more likely if the scammers have previously taken remote control of your device under the pretence of assisting you through services, like AnyDesk.

As tempting as it may be, avoid formatting or performing factory resets at this stage. Evidence preservation is vital, particularly as forensic digital examination of your devices could yield critical information, instrumental in tracing and recovering the stolen assets. Formatting or resetting the device risks destroying potentially valuable evidence which often indicates the attack vectors used by the scammers and can be a useful part of the puzzle in identifying who they may be.

If your budget permits, obtaining new, uncompromised devices for interim use is recommended.

  1. Secure remaining cryptoassets

It may be that the scammers have only targeted or been able to target specific parts of your crypto holdings. However, if your devices or email/social media accounts have been compromised, it is likely they know much more than you think – including what centralised exchange accounts and wallet addresses you have that they may wish to target next.

As such, you should immediately access and review all centralised exchange accounts you may hold online, and cold storage where applicable. Update your details held at these accounts, including email, contact information and passwords.

It is also crucial to strengthen your two-factor authentication and carefully review transactions to identify any activity you do not recognise which may be indicative of that account being compromised.

If you are holding any assets on these accounts, consider creating new, secure self custodial wallets on uncompromised devices and transferring remaining assets between multiple wallets.

If you have previously staked assets, check to see whether these remain staked or have been unstaked without your knowledge and are in any cooldown period. If unstaking has been initiated, try to take steps to ensure the unstaked assets can immediately be sent to your new, secure wallets as soon as possible.

  1. Engage with experts

Engaging promptly with specialist lawyers experienced in crypto asset disputes, particularly asset tracing on blockchains and recovery, can be vital ensuring the swift tracing and recovery of your assets.

Your legal team will quickly be able to identify suitable independent blockchain tracing specialists who will be tasked with conducting an initial tracing report to follow the movement of your crypto assets and their traceable proceeds. You will need to provide proof that you owned the assets (such as statements) as well as relevant transaction hashes or addresses as this will form the basis of asserting your proprietary claim to those assets. This is essential in recovering such assets.

Scammers typically seek to convert stolen crypto assets into cash, often using centralised exchanges as their off-ramp. The first step in any successful crypto asset recovery matter is identifying the exchanges used. These exchanges will have established payment rails which allow them to enable the transfer of fiat funds and are crucial to their business operations. 

As these payment rails exist within a regulated environment, banks must be comfortable with the funds handled by these exchanges. Consequently, exchanges are subject to a degree of regulatory oversight and compliance mechanisms to satisfy the requirements of typically highly regulated banking entities.

Once an investigator can identify exchanges which have received the stolen assets, your legal team should then enter into dialogue to place them on notice that they have received the proceeds of crime and request they take specific actions. These include freezing the relevant accounts to secure any assets held within, as well as requesting disclosure of any onward transfers and withdrawals from that account which can be used to further trace the stolen assets with a view to recovery.

This draws a line in the sand – the exchange is now aware of the issue and any funds held at or subsequently deposited at that account must now be frozen.

  1. Seek emotional support

Recognising that you have fallen victim to a scam can trigger intense emotional distress, anxiety, and feelings of isolation. It is important to recognise you are not alone and that these feelings, while overwhelming, are a common response to what can be a very personal breach of privacy, trust and security.

If you find yourself in such a position, consider reaching out to supportive friends and family. Whilst there are also online communities offering support to victims, you should treat these with caution, as these can present attractive hunting grounds for scammers seeking to exploit those at their most vulnerable.

If you find your emotional state severely impacted or you are feeling persistent low, anxious or overwhelmed, it is essential to seek professional medical or mental health support.

As outlined above, acting quickly and methodically within the immediate hours and days after discovering a scam or can significantly improve the prospects of recovery and limit the broader financial and emotional damage.

For more information on our services relating to technology disputes, please click here. For our cryptoassets services, please click here

James Lyons comments on private equity and retail businesses in Retail Sector

Posted on: April 7th, 2025 by Natasha Cox

Director in the Corporate and Commercial team, James Lyons, comments on the trend of private equity firms investing in retailers, and discusses how these growth strategies can benefit both business and private equity buyers.

James’ comments were published in Retail Sector, 4 April 2025, and can be found here.

Speaking with Retail Sector about the trend of publicly listed retailers taking private equity, James explains that “if the business continues to benefit from access to institutional capital, stock liquidity, and the other advantages that come with a listing, then remaining public makes sense.”

He states that there are challenges that come with this, noting “the costs of listing, the scrutiny, and the increased pressure, especially with rising employer and NI costs, all add up. When those burdens become greater than the benefits, it’s easy to see why more retail companies are opting to go private.”

Commenting on the recent acquisitions of Walgreen Boots Alliance by private equity, James told Retail Sector that “Sycamore’s acquisition of Walgreens includes Boots, but that’s just one part of the wider business. A number of commentators believe that Sycamore will likely spin off Boots to focus more on the US retail market. It’s possible we could see Boots reappear on the public markets, perhaps through a demerger and a new listing in the UK. Alternatively, it could be sold to another private equity firm or a trade buyer.

“While it’s hard to predict exactly what form it will take, I’m sure the brand will endure.”

James explains that, for private equity firms looking for retailers to invest in, “it’s about identifying where investment can generate increased returns over the next few years and ensuring the business is positioned for long-term sustainability. Take Boots, for example. Its pharmacy element is heavily regulated, which may be of interest to some private equity firms, but not necessarily to all.”

James also notes that “retailers that can leverage technology to strategically enhance their business are likely to attract more private equity interest. Ultimately, the future of retail is moving towards digital, making it a key area for private equity firms, rather than traditional high street retail.” 

Speaking on the evolution of this sector, James commented “Retail now is very different from what it was two decades ago. It’s a blend of the traditional high street and the rapidly expanding online retail sector. The rise of digital technology and AI interfaces has really shaped the way consumers shop today. Private equity firms bring both expertise and investment, particularly in the digital and e-commerce space. Traditional retailers may not have had the same level of expertise or know-how, and that’s where private equity can make a real difference.”

He goes on to argue that this is not the be all and end all of business, stating that “public listings can still be a credible option for the right business at the right point in its cycle, if done for the right reasons. So, I don’t see this as a long-term trend. For example, it’s not beyond the realms of possibility that Boots could come back to the public markets at some point, if it makes sense for the business.

James concludes by suggesting that, overall, the strategy of the private equity firms is key to such deals, and that these are questions retailers must consider

“There has to be a commercial deal that works for both parties. What are the intentions of the new owner? What areas do they plan to invest in? Where do they see future growth? Is this the right owner to take the business to the next level?” 

To find out more about our Corporate and Commercial services, click here. To find out more about our services in the Retail sector, click here.

 

Gareth Hughes comments on wills for parents in The Guardian’s ‘The Good Life’ supplement

Posted on: March 28th, 2025 by Natasha Cox

Director and Head of Private Wealth and Succession Planning, Gareth Hughes, explains why having wills in place is crucial for parents looking to protect the interests of their children.

Gareth’s comments were published in The Guardian’s ‘The Good Life’ supplement, 8 March 2025.

“For many parents, taking steps to secure their child’s future in the event of their own death is an area of primary concern. Putting a will in place can be a daunting prospect; however, we consider it essential to protect the best interests of the child.

“A key concern is responsibility for the day-to-day care of the child. Under a will, a parent can appoint a guardian and ensure that minor children will be cared for by a person they trust with the responsibility.

“Finances also warrant careful consideration. By making a will, a parent can put appropriate structures in place so that assets are managed and used to support their children until they are of an age to manage the assets themselves.

“A will gives a parent peace of mind: that they have done everything they can to protect their children in the event of their death.”

If you would like advice on drawing up your will, please contact a member of our Private Wealth and Succession Planning team.

Danny Schwarz and Stephen Dodge discuss the imminent closure of Prince Charles Cinema in Estates Gazette

Posted on: March 27th, 2025 by Natasha Cox

Director and Head of Commercial Real Estate Danny Schwarz, and Trainee Solicitor Stephen Dodge examine how the ongoing lease renewal dispute between a tenant – the Prince Charles Cinema – and their landlord reveals real estate concerns for many of London’s independent businesses. 

Danny and Stephen’s article was published in Estates Gazette, 25 March 2025, and can be found here. 

——

From packed showings of cult classics like The Room to raucous singalong presentations of The Rocky Horror Picture Show, Londoners are united by weird and wonderful memories from the iconic Prince Charles Cinema in Leicester Square. However, few visitors would have imagined, while passing through the theatre’s red carpeted corridors, that such a long-standing institution does not own its space.

Like many of London’s independent businesses, the Prince Charles Cinema is a tenant, and is currently suffering the nightmare of all tenants – a bitter dispute with its landlord. However, unlike the horror classics that have played across its screens, the plucky protagonist of this story seems unlikely to make it out alive.

The cinema announced earlier this year that its landlord has all but chosen to force the cinema to close its doors.

Lease renewals and break clauses

In what otherwise might be a standard lease renewal at market rents, the landlord has demanded rents the cinema pays are far above market rates. It has also proposed a rolling break right in the lease, which would allow the landlord to terminate the lease on six months’ notice at any time. The belief is that the landlord, owned by real estate development company Criterion Capital, intends to redevelop the property.

It’s not hard to see why

Already a prime London location, the Prince Charles Cinema is an historic building in an area of high footfall. Despite the theatre’s old-world charm, there are likely scores of rival businesses that would happily swoop in on such a desirable plot.

While break clauses in commercial leases are a part of business included to provide a degree of certainty of term to the parties and to minimise the risk of non-payment of rent, they are typically commonplace in commercial leases. A landlord or tenant may have an option to break on the third or fifth anniversary of their agreement, but that option allows the break to occur only on that specific date, with notice. Sometimes, tenants with break clauses are even rewarded for not exercising that clause with a rent-free period after the break date.

The proposed break clause in the Prince Charles Cinema’s new lease would throw certainty to the wind by allowing the landlord to force out the tenant at any time.

The demand for above-market rents adds a further layer of obfuscation to the negotiations.

The landlord’s break which they can exercise at any time is not in itself a reason for the Prince Charles not stay in occupation. The above market rent is more likely to prevent the cinema from renewing its lease. If the landlord wanted the property vacant, it might have simply elected not to discuss renewal. Unless of course the Prince Charles is protected by the security of tenure provisions of the Landlord & Tenant Act 1954.

A look at the lease

A look at the current lease which is available to view at the Land Registry suggests that the Prince Charles could be in a better negotiating position than reported, given that it enjoys security of tenure under the lease. This means the cinema could serve a notice on the landlord requesting a new lease on the same terms as the existing lease save for the rent and the term of the lease which would both need to be in line with the current market. This would mean that for the landlord to oppose the grant of a new lease it would have to object on one of the prescribed grounds, in this case most likely redevelopment.

The difficulty the landlord would face is that at present its plans to redevelop the property are nothing more than rumours and to oppose a new lease the landlord must show genuine intent, through applying for planning permission, for example

A look at the rent review provisions in the current lease of the cinema hints at another reason the landlord may be wary of statutory renewal proceedings. The lease granted in 1963 contains provisions for rent review every 21 years and capped at £14,000 per annum. This may explain how the cinema has survived this long in Leicester Square. Capped rent reviews are less common in modern leases. Leases also tend to be shorter, and rent reviews usually occur every 5 years, not every 21.

Ultimately, this is all speculation. It is impossible to know the exact status of the negotiations. Unless the Prince Charles has grounds to oppose the proposed higher rents and rolling landlord’s break, there is likely little the cinema can do in this situation.

Despite a petition circulating gathering more than 15,000 signatures at the time of writing, for independent businesses in the entertainment and hospitality sectors who are facing these ‘David vs Goliath’ battles against their larger landlords, there is simply not enough bargaining power.

Silver screens and silver linings

This position is made worse for businesses with unique or novel requirements for their property, such as cinemas.

While the Prince Charles is a unique business with its niche and devout following, cinemas are becoming increasingly less desirable as tenants, due to their relatively low turnover post-pandemic. In areas like Leicester Square, there is an added incentive for landlords to attract businesses with high turnover and higher spend per customer, so that they can charge turnover rents.

There is one silver lining to the storm cloud gathering above the Prince Charles Cinema: the landlord has not yet applied for planning permission to redevelop. A search of Westminster Council’s Planning Portal shows just one entry relating to the property – an approved application to display an unlit sign reading ‘to let’.

So, for now at least, the show goes on.

If you would like to know more about our Commercial Real Estate services, or to get advice about commercial leases, please click here

Jim Richards discusses divorce and pension sharing orders in FT Adviser and Today’s Wills & Probate

Posted on: March 25th, 2025 by Natasha Cox

Director and Head of Family Jim Richards discusses how despite their usefulness, the use of pension sharing orders in divorce proceedings has not become widespread since their introduction 25 years ago. 

Jim’s article was published in FT Adviser, 20 March 2025, and can be found here. A version of his article was also published in Today’s Wills & Probate, 21 March 2025, and can be found here.

It is a sadly familiar scenario at the end of a marriage – especially in TV dramas. Along with the sale of the house there is the dividing up of the debris from the failed relationship. Who gets the pictures? Who gets the potted plants? Who gets the cat?

Not so often featured is perhaps the most important decision of all: who gets the pension?

A study undertaken on pensions and divorce at the start of the decade by research hub MICRA, based at the University of Manchester, along with the Pensions Policy Institute, came to some clear conclusions.

The research found that there were “wide gendered pension disparities” within couples at the higher end of the income distribution, as well as those at the lower end too. Overall, it suggested that such disparities could make a “marked difference” to couples going through separation proceedings. 

However, unlike a prenuptial agreement, for example, pension sharing on divorce should not exclusively be a concern for the wealthy.

Its potential importance and contribution to wellbeing applies widely across society as a whole.

Yet, in the midst of the mayhem that often accompanies the dissolution of a marriage, it can easily get overlooked.

Pensions often not priority

By and large couples heading for divorce are in their 30s and 40s.

Retirement may seem a long way off and the immediate priority might be ‘what happens now?’ rather than the remote issue of finances 30 years ahead. 

Of course, one aspect of this is that pensions still do not loom large enough in younger, middle-aged people’s awareness. Many do not save enough and they do not do so when they are young enough for it to make a difference. 

As revealed by the MICRA and PPI research, most people are also significantly under-resourced in terms of their retirement income and pay little attention to this until they are in their 50s. 

By this point, it is obviously much harder to compensate by increasing contributions for the years that have already passed.

Meanwhile, on divorce, this deficit problem can be compounded if parties are aiming to take on new mortgages to meet their housing needs with the possibility that they might not be repaid until well into retirement.

Any income that they enjoy must be deployed first to repaying the mortgage. 

They will not have time enough from perhaps their early 50s until retirement in which to put more money into a pension fund.

Short-term thinking about pensions can overlook the importance of long-term financial security – and it also reflects the importance of receiving tailored legal advice.

If you would like advice on divorce and financial settlements, please contact a member of our Family team.

Employment law insight: what were the BBC’s obligations during the Huw Edwards scandal?

Posted on: March 7th, 2025 by Natasha Cox

The BBC have come under questioning regarding its handling of the Huw Edwards case in the wake of him pleading guilty to child sex offences on 31 July 2024. There is a particular focus on the period of Edwards’ suspension from July 2023, when he continued to receive his full pay of £475,000 per annum, and also received a pay rise of £40,000 during this time. We now know that the BBC were made aware of his arrest during November 2023. The underlying question here is whether his employer should have dismissed him at this point.

Putting aside the awful nature of his crimes, there is no getting away from the fact that, from an employment law perspective, the BBC had obligations towards Edwards until his resignation in April 2024.

Obligations during suspension

Once an employer is made aware of allegations of criminal activity and criminal charges relating to its employee, they are obligated to investigate to try and obtain as much information as possible.

Right to suspend

In most cases of gross misconduct (and more serious cases of simple misconduct), employers should consider suspending an employee pending the results of their investigation. Whilst suspension is by no means the default position, the ACAS code of Practice suggests suspension is acceptable if the employer reasonably believes it would be protecting any of the following:

  • the investigation: for example, if you’re concerned about someone damaging evidence or influencing witnesses;
  • the business: for example if there’s a genuine risk to your customers, property or business interests;
  • other staff; or
  • the person under investigation.

During the suspension, the employer will need to carefully consider decisions surrounding pay. Unless there is a clear contractual right to do so, the employer is not entitled to suspend a salaried employee without pay or contractual benefits.

In this case, if the BBC withheld or reduced Edward’s pay during his suspension, there would have been a risk of legal action by Edwards, although it is questionable whether Edwards would have wished to attract further media attention by instigating legal proceedings. In fact, there would still have been a risk of legal action, such as a claim of constructive unfair dismissal even if the contract allowed reduced or no pay during suspension.  

Would it have been fair to dismiss Edwards from November 2023, had he not resigned in April 2024?

Following the allegations, careful consideration ought to have been given to the pending disciplinary process and what action to take.

Prior to any dismissal, employers should consider the following:  

  • nature of the conduct: in cases of misconduct, consider whether actions or allegations relating to actions outside of work are sufficiently serious to warrant disciplinary action at work. Sometimes even cases that appear to be obvious misconduct affecting employment can lead to successful claims of unfair dismissal, such as in Walters v Asda Stores.
  • the evidence: when considering dismissal, the employer should endeavour to have as much information as possible prior to making any decision.
  • employee’s health: prior to any dismissal, the employer ought to consider whether there are any allegations or information to suggest ill-health on the part of the employee. If so, the employer ought to investigate the employee’s health. If the employee refuses to co-operate, it may be fair for the employer to dismiss.
  • the procedure: an employer must still follow a fair and reasonable procedure if an employee is accused of misconduct, including gross misconduct. What is fair and reasonable will vary from case to case, but there are certain minimum requirements, which ought to be followed in all cases. For example, employees have the right to be accompanied by a colleague or Trade Union representative at a disciplinary hearing.

In the case of Edwards, the complexity arises from the fact his criminal activity and convictions were unrelated to his work. Further, at the time of his arrest, the BBC claimed it did not have all the details surrounding the offences. It was also known that Edwards was hospitalized due to experiencing severe mental health issues which had worsened since the allegations were made. 

While criminal allegations or convictions alone may not justify disciplinary action or dismissal, there may still be grounds to dismiss. An employer may be able to establish a potentially fair reason for dismissal, if they can show there is misconduct sufficiently serious to justify dismissal for some other substantial reason. 

Employers may consider that an employee’s conduct (in this case criminal conduct outside of the workplace) is sufficiently serious to justify a dismissal on the basis that continuing to employ them would have a reputational impact. They would have to consider the nature of the offence and whether this will attract negative publicity. If so, they would need to consider reputational risk, as well as their health and safety obligations towards other staff, or service users. 

In the case of Edwards, given the nature of his offending, the reputational damage would have had a huge negative effect on the reputation of the BBC – a body that must be seen to uphold the highest standards. Had Edwards not resigned and the BBC continued to employ him, this would have exposed the BBC to disrepute, scandal and contempt. Edward’s link to the BBC could have caused sufficient damage to its reputation to affect the amount of licence revenue the BBC could generate for years to come.   

The BBC probably had all these considerations in mind when it decided not to dismiss Edwards. Edwards had not been found, or pled, guilty and the complex investigation was still ongoing. He was also hospitalised due to a mental health crisis. Failing to follow a fair and reasonable procedure, and disregarding his ill-health, could have exposed the BBC to liability for a claim of unfair dismissal. However, had Edwards not resigned in April 2024, the BBC would have had fair reason to dismiss him following his guilty plea.

When should an employer take action against the employee?

There are no hard and fast rules to apply when determining whether to go ahead with disciplinary proceedings when there is a criminal trial pending. The most important thing is for the employer to conduct its own investigations into the issues and to properly consider the options available in line with their requirements in the Employment Rights Act 1996. Employers have discretion whether to postpone disciplinary action where the employee’s misconduct is also the subject of a criminal investigation and prosecution. Even in emotive cases such as this, an employer ought to be careful not to act precipitously. 

BBC’s obligations to other staff

Whistleblowers who gave evidence to the BBC internal inquiry into Huw Edwards have criticised the way it was handled. One staff member says they were sent flirtatious private messages by the presenter in 2023. They complained that they had not been kept informed about the progress of the inquiry. Another staff member claimed that Edwards sent suggestive messages alongside a picture of his hotel suite.

Such allegations may constitute whistleblowing, which affords the employee various protections from dismissal and detriment, on the ground that they have made a protected disclosure. Providing effective protection for whistleblowers is important for several reasons, including:

  • encouraging a speak-up culture;
  • internal risk control;
  • limiting reputational damage;
  • protecting staff morale; and
  • avoiding unnecessary litigation.

If an employee is dismissed or is subjected to detriment on the ground that they have made a protected disclosure, this can expose the employer to potential tribunal claims for automatically unfair dismissal or whistleblowing detriment. Importantly, financial compensation in respect of these claims is uncapped, so employer liability can be significant.

When someone blows the whistle, the employer should explain its procedures for making a disclosure and whether the whistleblower can expect to receive any feedback. Often a whistleblower expects to influence the action the employer might take, or expects to make a judgement on whether an issue has been resolved, but this will rarely be appropriate.  

It is in the employer’s best interests to deal with a whistleblowing disclosure promptly. This allows the employer to fully investigate, make any further necessary enquiries and determine any appropriate action.  

There are several things an employer should do when a whistleblowing disclosure is made. It is important to make sure that as an employer, you:

  • handle any whistleblowing complaint fairly and consistently;
  • follow any process your organisation has for whistleblowing; and
  • keep the identity of the whistleblower confidential. 

The Government’s Whistleblowing Code of Practice encourages clear and prompt communications between the whistleblower and the employer. They should provide feedback to whistleblowers, within the confines of their internal policies and procedures. This is vital so that whistleblowers understand how their disclosure has been handled and dealt with. Failing to do so may result in the whistleblower approaching other individuals or organisations to blow the whistle externally. Therefore, it is strongly advisable for an employer to have a policy which explains the benefits of making a disclosure, the process and how the disclosure will be dealt with.

Takeaways from this case

It is reasonable to say that this case is far more complex than it may have initially appeared. If you need further guidance in relation to employee misconduct, suspension or dismissal, or you need a whistleblowing or disciplinary policy, please speak to our specialist employment team.