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Month: July 2024

South Asian Heritage Month interview with Co-founder, Jasvir Singh CBE

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In conjunction with South Asian Heritage Month this year, one of our trainees Simran Hoonjan reached out to one of the co-founders, Jasvir Singh CBE to find out more about the birth of the initiative and its significance. South Asian Heritage Month will run from 18 July to 17 August 2024, and this will be the 5th anniversary of the project.

A transcript of the interview can be seen below. 

1. Why did you and Binita decide to set up South Asian Heritage Month?

Jasvir Singh CBE and Dr Binita Kane established South Asian Heritage Month in 2020 to celebrate and raise awareness of the diverse cultures, histories, and contributions of South Asian communities in the UK. The initiative, which runs from 18th July to 17th August each year, aims to foster understanding and cohesion, highlight the positive impact of South Asians on British society, and address issues of identity, heritage, and integration. By doing so, they hope to create a more inclusive society that recognizes and appreciates the rich tapestry of South Asian heritage.

2. Tell me a bit more about this year’s theme – ‘Free to Be Me.’

This year, our theme is “Free to Be Me,” and we’re excited to celebrate the beauty of simply being yourself. Every one of us has a unique journey filled with moments that have shaped who we are. We want to hear about the experiences that have taught you valuable lessons and helped you grow. No matter who you are, your story matters. Our stories connect us in profound ways, and there are countless ways to share them. Whether you express yourself through art, writing, music, fashion, or food, your heritage is worth celebrating. Let’s explore the diverse ways we honour our roots and individuality. Intersectionality is given the spotlight in this manner. We also appreciate that not everyone is free to be themselves, and we want to focus on what barriers there are which prevent that from happening


3. Why is diversity and inclusion so important in the workplace?

Diversity and inclusion is so important in the workplace because it allows us to bring our authentic selves along to our professional lives, as well as celebrate who we truly are without having to hide aspects of our identity or diminish who we are as individuals

4. Tell me about your journey into law and what motivated you to pursue family law?

I became interested in family law from a young age. I was 8 years old when a family member was going through a divorce and I remember just how difficult it was for them. I couldn’t understand why it was such a painful and drawn out process, and I wanted to help people going through such painful times as best I could. That desire to help has remained with me throughout my adult life. Family law to me is about solving human issues using the legal system, and about providing a focus on the issues in hand without allowing emotions to get in the way of the best outcome. At the heart of it all are families wanting to get closure and a resolution to their problems so that they can move on with their lives.


5. What would you say is your biggest achievement to date?

My biggest achievement to date has been getting a CBE from the King in the 2023 New Year’s honours list in recognition of my extensive charity work, including the founding of South Asian Heritage Month. Both of my parents worked in factories and neither of them went to university, so to have come from a working class background to gain such an honour means a great deal to me as well as my family.


6. What other efforts do you think law firms can do to boost diversity and inclusion?

Generally speaking, law firms tend to be diverse places of work. However, the structures do sometimes mean that the diversity can’t always be seen at all levels within the law firms. Also, intersectional identities tend to be hidden in the workplace. I’m a proud turban wearing gay Sikh man, and yet I am aware of many LGBTQ+ South Asian lawyers who keep their sexuality a secret because they fear how people may react at their law firms or in Chambers. There is much work yet to do to allow people to be truly free to be themselves. One thing I would suggest would be to create safe environments at work so that individuals can open up about themselves if they feel comfortable to do so. It’s also important to recognise that not everyone wants to be open in the workplace, and that needs to be respected and understood too.

From October 2024 employers must take reasonable steps to prevent workplace sexual harassment

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From October 2024 there will be new legal duty on employers to take reasonable steps to prevent sexual harassment in the workplace.

The Worker Protection (Amendment of Equality Act 2010) Act 2023 follows an inquiry in 2018 by the Women and Equalities Committee into the extent of sexual harassment at work. The inquiry recommended existing laws were ‘beefed up’ to force employers to be more proactive about shielding workers from harm.

The legislation amends the provisions in the Equality Act 2010 to better protect employees from workplace harassment and sexual harassment, shifting the focus from ‘redress’ to ‘prevention’. It introduces a duty on employers to take proactive steps to prevent sexual harassment from occurring in the workplace, placing greater responsibility on them to make workplaces safer, and to take a robust approach to complaints of sexual harassment. 

If employers fail to take reasonable steps to prevent sexual harassment, the Equality and Human Rights Commission (EHRC) can take enforcement steps. Also, where an employment tribunal has first upheld a claim for sexual harassment, it will have the discretion to award a ‘compensation uplift’ by increasing any compensation it awards for sexual harassment by up to 25%.

What the new duty means for employers

An employer is vicariously liable for discrimination, harassment (including sexual harassment) or victimisation committed by an employee in the course of employment, unless it can show it took all reasonable steps to prevent its employee from committing a particular discriminatory act. Reasonable steps might include having an equal opportunities policy or an anti-harassment and bullying policy. The employer must also take steps to implement the policies, such as providing sufficient and regular training to staff and managers as well as regular reviews of policies.

All employers should take action to comply with the new positive obligation to prevent sexual harassment. Beyond simply trying to avail themselves of the defence that they took reasonable steps to prevent harassment, many organisations will want to use this opportunity to support their female workforce and others who are particularly vulnerable. 

Steps for employers to consider before October 2024

In order for employers to take the necessary proactive steps to prevent sexual harassment in the workplace, employers should consider implementing the following measures:

  • Ensure there is a reporting register for complaints about all forms of harassment.

This will allow ongoing monitoring to spot themes or particularly risky practices and take action to address these. There are data protection implications of creating and maintaining such a register, for instance, employers will need to identify a lawful basis and ensure any register can only be accessed on a ‘need-to-know’ basis and is appropriately secured.

  • Identify the risk of harassment in each set of roles and circumstances and thinking through specific measures to protect employees in each.
  • Take employee-facing steps such as updating and re-circulating anti-harassment tailored training to help staff members avoid the threat of harassment, and to give those who witness harassment the means to safely intervene and/or report the incident.
  • The EHRC’s guidance on sexual harassment and harassment at work contains steps employers should consider taking in order to prevent and deal with harassment at work. It is intended that the introduction of the new employer duty to take reasonable steps will be supported by the EHRC’s statutory Code of Practice on workplace harassment, which is due to be published in time for the Bill’s implementation.
  • Although the amendments to the Bill in the House of Lords removed the duty to protect workers from third-party harassment, employers may still consider third-party facing steps like installing visible signs in areas where customers interact with staff members explaining that threats, violence and harassment will not be tolerated and providing a means for bystanders to report instances of staff harassment.

If you would like access to advice or need further guidance, please contact the Employment Team at Blaser Mills Law on 020 3814 2020 or email enquiries@blasermills.co.uk.

Whose T&Cs win? Handling competing business terms

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Terms of business (T&Cs) are vital for the smooth operation of supply of goods and services for businesses across all industries. A clearer, functional set of standard T&Cs is a hugely valuable business tool that can govern business relationships without the need for individually-negotiated contracts with each customer or supplier, which would be impractical to achieve for busy commercial parties.

While firms strive for clearly drafted T&Cs setting out their delivery obligations, liability and apportionment of risk against a supplier or customer, this can be undermined if the supplier or customer instead seeks to impose their own T&Cs on the relationship.  It is therefore important to understand whose T&Cs will prevail to any business contract. In legal doctrine, this is known as the “Battle of the Forms”.

In most cases, if two contacting parties each seek to impose their own equally-balanced T&Cs, the courts will apply the rule that the “last shot wins”. This means that the last set of T&Cs that are shared and acknowledged or accepted by the other party will prevail. While this is simple enough to comprehend, it presents difficulty where both parties seek for their T&Cs to be the ‘last shot’ issued in hope that this alone will make their T&Cs the binding document. It also has its limitations that even if the T&Cs are issued last, if they are not validly acknowledged or accepted by the other side, they would still not take legal effect.

To help counteract these complications, there are certain steps that businesses can take to make sure that their T&Cs stand the best chance of being the accepted terms of a contractual relationship.

Drafting of the T&Cs:

  • Include clear wording that the T&Cs prevail over any other terms. This should include rival T&Cs, any other documents like pre-contract emails and even verbal discussions.
  • Clarify the contract formation process – At its core, a contract requires an offer and an acceptance. If a supplier makes an offer by sending a quote, which a customer accepts, then the customer’s action creates the contract – potentially using their T&Cs. This suits a customer looking to win the battle of the forms. If a supplier wants to win the battle though, it should ensure it (not the customer) creates the contract. Supplier T&Cs should clarify that a quote is not a formal offer, but the customer’s reply to or purchase order following that quote forms the offer, which the supplier accepts or rejects. The T&Cs should confirm that the contract comes into existence only upon the supplier’s acceptance and on the basis of the supplier’s T&Cs. If the customer does nothing further to challenge that position, it gives a clear indication that the supplier’s T&Cs should apply to the contract.

Practical steps for suppliers

  • Having set out an order process in the T&Cs, always follow it in practice. Avoid makinginadvertent offers by ensuring that pre-contract documents and correspondence (for example quotes or emails sending out a catalogue) are clearly described as not being offers. That way, the offer and acceptance process is not accidentally triggered at the wrong time and the process in the T&Cs can operate as planned.
  • Refer to the T&Cs in all pre-contract documents. A simple way to do this is to include a hyperlink to the T&Cs in all relevant documents.
  • Make the position even clearer when quoting: Quotations should clearly state that (a) they are not an offer and (b) any order that is placed further to the quote is based on the supplier’s standard T&Cs. For added clarity, the T&Cs could be appended to the quotation itself.
  • Send the T&Cs again with acceptance: Even if the T&Cs were shared at quote stage, attach them again when sending an order acknowledgment and make clear in the Order Acknowledgment email that the order – and the legal contract between supplier and customer – is based solely on the supplier’s T&Cs.
  • Commence work only after order acknowledgement. Staff should not commence work on an order until after the order acknowledgement has been sent. This counters the claim that the customer “created” the contract (and so the customer T&Cs apply) because the supplier started work on the contract following the customer’s action or correspondence.

For further information on how to make your T&Cs work harder for you, please contact Becky Cooper at becky.cooper@blasermills.co.uk or on 01494 932614.

Adjudication – Challenging enforcement

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You may think that receiving an Adjudicator’s Decision is the end of the matter. However, there are occasions where the losing party to an Adjudication does not pay up. The winning party can then apply to the Technology and Construction Court (the “TCC”) to enforce the Adjudicator’s Decision.

The TCC’s standard approach is to enforce an Adjudicator’s Decision. The principal reasons for the TCC to decline to enforce is that the Adjudicator lacked jurisdiction on specific grounds or there has been a breach of natural justice. Further, there is now an increasing use of fraud allegations by resisting parties as a defence to enforcement.

Challenges to Enforcing an Adjudicator’s Decision

Lack of Jurisdiction
There are various grounds on which an Adjudicator’s jurisdiction can be challenged. Two of the most common grounds are:

  • The dispute referred to Adjudication had not crystallised at the time the dispute was referred.
  • The dispute referred to Adjudication was the same or substantially the same as a dispute already decided by an Adjudicator.

Where a party wishes to raise a challenge to jurisdiction at the enforcement stage, it is important for that party to reserve its position to do so as early as possible during the initial Adjudication proceedings, which in turn depends on when that party became aware of the circumstances giving rise to such a challenge.

If the resisting party did not reserve its rights, that party may be taken to have waived its right to do so and the TCC is unlikely to entertain a jurisdictional challenge at the enforcement stage.

Importantly, there is a danger in relying on a general reservation of rights. In the case of Bresco Electrical Services Ltd (in Liquidation) v Michael J Lonsdale (Electrical) Ltd [2019] EWCA Civ 27, (in which Blaser Mills represented the successful party) the Court of Appeal concluded that:

  1. A challenge to jurisdiction should be made “appropriately and clearly”.
  2. It is favourable for a party to reserve its position based on a specific objection “otherwise the adjudicator cannot investigate the point and, if appropriate, decide not to proceed, and the referring party cannot decide for itself whether the objection has merit”.

While a general reservation is not necessarily ineffective, a challenge to jurisdiction should be specific where a specific ground is known to the party wishing to challenge jurisdiction.

Breach of Natural Justice
Examples include the Adjudicator’s failure to:

  • Consult with both parties;
  • Give a party sufficient time to respond to a submission;
  • Take into account submissions from one party;
  • Take into account a party’s defence/counter-claim;
  • Give reasons for the Decision.

In practice, the TCC is very reluctant to refuse to enforce an Adjudicator’s Decision on the ground that there has been a breach of natural justice. The recent case of AZ v BY [2023] EWHC 2388 (TCC) offers one rare example in which the TCC was willing to do so. In this case, certain communications between the parties which were marked ‘without prejudice’ were submitted to the Adjudicator by the Referring Party in support of its Referral.

The Judge concluded that the “fair-minded and informed observer would conclude that there was a real possibility that, having seen the without prejudice material, the adjudicator was unconsciously biased”. Consequently, the TCC granted the Responding Party a declaration that the decision was unenforceable.

Importantly in this case, the without prejudice material was placed “front and centre within the adjudication” and the material contained implicit admissions by the Responding Party which were plainly inconsistent with its open position in the Adjudication.

While AZ v BY clarifies the position on the disclosure of without prejudice material in Adjudication, it also serves as a reminder to parties of the difficulties in challenging enforcement on the grounds of a breach of natural justice.

Finally, and almost as a footnote, it has been established law since the 2000 case of Bouygues UK Ltd v Dahl-Jensen UK Ltd [2000] EWCA Civ 507 that the courts will enforce an Adjudicator’s decision even where the Adjudicator was demonstrably wrong, as long as the Adjudicator answered the question posed.

Fraud
The courts will not allow the standard policy of enforcing Adjudicators’ decisions to be undermined simply because the other party makes an allegation of fraud. However, the court is unlikely to grant summary judgment in favour of an enforcing party where there is credible evidence that an Adjudicator’s Decision was founded (innocently or otherwise) on fraudulent conduct by the successful party.

The general principles as to whether a party may successfully allege fraud to avoid an Adjudication enforcement were set out in SG South Limited v Kings Head Cirencester LLP [2009] EWHC 2645 (TCC).

  • Fraud can be raised as a defence in Adjudication provided that it is a real defence to the claim.
  • Where a defence of fraud is raised, it must be supported by “clear and unambiguous evidence and argument”.
  • The TCC drew a distinction between cases in which fraudulent behaviour, acts or omissions which were or could have been raised as a defence during the initial Adjudication proceedings and those in which such behaviour, acts or omissions which emerged after the initial Adjudication proceedings took place. The TCC concluded that, in the former case, if the behaviour, acts or omissions were in effect adjudicated upon, the decision is enforceable and generally only in the latter case may allegations of fraud be raised after the initial proceedings as a defence to enforcement.

The TCC revisited the use of fraud allegations as a defence to Adjudication enforcement in the case of PBS Energo AS v Bester Generacion UK Ltd [2019] EWHC 996 (TCC). In this case, Bester acted as a main contractor to construct a power plant and it engaged PBS as its sub-contractor. The parties fell into dispute and the sub-contract was terminated. PBS referred a dispute to Adjudication, seeking a valuation of the sum due to it upon termination of the sub-contract. The Adjudicator decided that Bester was liable to pay PBS £1.7 million as the total value of the works completed, less previous payments.

Alongside this Adjudication were underlying TCC proceedings between the parties. After the Adjudicator’s Decision was made, Bester became aware of documents that indicated fraudulent behaviour by PBS as part of the disclosure process during the TCC proceedings. Among other issues, these documents revealed that PBS had sold equipment, which it submitted had been manufactured for the sub-contract with Bester and held to Bester’s order in the Adjudication proceedings, and installed such equipment in another power plant.

PBS Energo provides helpful guidance on when a fraud defence may successfully be raised in Adjudication enforcement, particularly in terms of what a court may expect by way of “clear and unambiguous evidence”.

Conclusions
A Responding Party in Adjudication should seek to raise jurisdictional challenges with the Adjudicator as soon as any grounds become apparent to that party. In particular, that party should reserve its position to raise jurisdictional challenges at enforcement stage and the reservation itself should be specific where possible.

If the Responding Party considers the Referring Party has engaged in fraudulent behaviour, acts or omissions in relation to the Adjudication proceedings, the Responding Party should raise these concerns to the Adjudicator during the proceedings. Otherwise, the Responding Party may not be able to later successfully avoid enforcement of an Adjudicator’s Decision on grounds of alleged fraud. If such fraudulent behaviour only becomes known to the Responding Party after the Adjudication proceedings have concluded, that party may raise such allegations of fraud at the enforcement stage so long as such allegations are supported by clear and unambiguous evidence.

Regardless of whether there are any apparent grounds to challenge jurisdiction, the Responding Party should fully engage with the Adjudication process and adhere to the timeline which has been set by the Adjudicator. This is particularly important given how rare it is for an Adjudicator to confirm that they lack jurisdiction and given how reluctant the TCC is to declare an Adjudicator’s Decision unenforceable.

How can Blaser Mills help?
Our Construction & Engineering team routinely refers disputes and responds to disputes referred to Adjudication. We are also experienced in enforcing Adjudication Decisions in the TCC.

Our advice is to ensure that our clients, whether the referring party or the responding party to an Adjudication, are fully prepared. In particular, we consider potential jurisdictional issues from the outset of our instructions and prepare our clients accordingly.