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Discrimination arising as a Consequence of Disability – Case Update: Sheikholeslami v The University of Edinburgh [2018]

16/10/2018
On 5 October 2018 the Scottish Employment Appeal Tribunal (the “SEAT”) handed down its decision in Professor Roya Sheikholeslami v The University of Edinburgh .  This decision touched on several

On 5 October 2018 the Scottish Employment Appeal Tribunal (the “SEAT”) handed down its decision in Professor Roya Sheikholeslami v The University of Edinburgh [2018].  This decision touched on several areas of interest under the Equality Act 2010 (the “EA”) but for our purposes the comments of most interest were those regarding discrimination under section 15 of the EA.

Section 15 of the EA

Section 15 of the EA prohibits treating an individual unfavourably because of something which results from (but is not in fact) an individual’s disability.

Section 15 is a tricky provision to apply and it can be difficult for businesses to predict its application which can be the source of some angst when trying to avoid exposures. Sheikholeslami provides useful guidance and reminders for businesses. This may help to minimise the scope for discrimination claims.

The facts

The claimant was Professor Roya Sheikholeslami. She was Professor and Chair of Chemical Process Engineering for the University of Edinburgh within the School of Engineering. Her employment commenced on 1 May 2007. Professor Sheikholeslami raised several complaints about her general treatment by the University. Ultimately, this led her to being signed off sick with workplace stress, anxiety and depression in October 2017. It was agreed that her mental condition satisfied the definition of “disability” within the meaning of the EA.

Employment Appeal Tribunal’s Decision

The SEAT overruled the original Employment Tribunal’s (the “ET”) decision which found that Professor Sheikholeslami had not been discriminated against. Despite her complaints regarding the University’s non-compliance with its own procedures, a visa issue resulting from her refusal to return to the School of Engineering and her ultimate dismissal the ET decided that she was dismissed because she “was unwilling or unable to return to work in her existing post”. Although section 15 has always been understood to provide a broader connection test, the ET felt that “there was insufficient evidence before it to make the necessary link with disability”.

In recent years, many decisions have sought to re-emphasise that the causation test in section 15 is whether the unfavourable treatment was for something that arose “in consequence of”, rather than “because of” a disability. In Sheikholeslami, the SEAT has seized another opportunity to stress the same. The SEAT set out the basic questions to be asked as follows:

  • Question 1: did the University treat Professor Sheikholeslami unfavourably because of an (identified) something?
  • Question 2: did the (identified) something arise in consequence of Professor Sheikholeslami’s disability?

In the language of this case, the “(identified) something” was Professor Sheikholeslami’s refusal to return to her previous role and the disability was her work-place stress, anxiety and depression.

So, in the SEAT’s view, the key question became whether the refusal to return to her role was something arising in consequence of her work-place stress, anxiety and depression. This was different to the approach taken by the ET which had said the question before them was whether she dismissed because of her disability. In doing so, the ET incorrectly used the language of direct discrimination in a section 15 claim which was a fundamental error. The SEAT stressed in its decision that for section 15 purposes, the causal connection “may involve several links” and the ET did not seem to contemplate this possibility. The ET should have considered why Professor Sheikholeslami was not prepared to return to her existing post. Professor Sheikholeslami became unwell due to treatment she perceived to derive from the workplace, this became a disability and her refusal to return to the workplace was because of the treatment she perceived. In the words of the SEAT, “in a case like the present one, where the disability, its cause, and its effects are all so interlinked… the broad causation question in section 15 was capable of being satisfied”.

Thoughts

Sheikholeslami clarifies that a looser connection involving more than one link in a chain of causation may be permitted for section 15 claims. For potential claimants, this means that they may have causes of action that they had not initially considered. For businesses, Sheikholesalami is a reminder that they must ensure their staff give careful thought to managing workplace stress. A broad causal rule like this can make it hard to predict what will be considered discriminatory towards disabled staff. Nonetheless, it is a difficult task that must be grappled with and seeking advice will often be prudent.

Our employment department has experience and expertise in all of the above areas.

If you would like any further information, please contact Noel Deans or Sean Field-Walton by email at noel.deans@rosenblatt-law.co.uk, sean.field-walton@rosenblatt-law.co.uk or by telephone at 0207 955 0880.

This article should not be taken as definitive legal advice on any of the subject matter covered. If you do require legal advice, please contact Rosenblatt as above.

Kavanaugh – #metoo – what businesses should learn

05/10/2018 | Noel Deans & Sean Field-Walton
Dr Christine Blasey Ford’s testimony before the US Senate on 27 September 2018 saw her refer to some of the social pressures which she says stopped her from reporting alleged sexual harassment by B

Dr Christine Blasey Ford’s testimony before the US Senate on 27 September 2018 saw her refer to some of the social pressures which she says stopped her from reporting alleged sexual harassment by Brett Kavanaugh in the 1980s. In light of these allegations, a number of other women have made similar allegations in a way that typifies the #metoo movement. For our clients, it is important to appreciate the ramifications of the #metoo movement on their businesses, especially in times of heightened publicity illustrated by the Kavanaugh nomination saga.

Internal procedures

For employers, it is not only proper but also advantageous to have in place robust reporting mechanisms. Given the (justifiably) renewed intensity of the #metoo movement, it has arguably never been more important. Vicarious liability means that an employer is at risk of inheriting responsibility for harassment, discrimination or victimisation caused by its employees. This poses a risk of both financial and severe reputational damage. Elements of the Equality Act 2010 (the “EA”) provide defences where the employer has taken all reasonable steps to avoid the offending treatment occurring. Sadly, all too often internal anti-discrimination, harassment, bullying and whistleblowing policies are not given the attention they are owed given that judges invariably examine these policies when determining whether an employer has implemented sufficient strategies to benefit from a statutory defence.

Non-disclosure agreements (“NDAs”)

The Solicitors Regulation Authority’s warning notice of 12 March 2018 stressed that confidentiality provisions must not (i) lead individuals to feel unable to notify a regulator or law enforcement agency about sexual or other misconduct or (ii) otherwise improperly threaten litigation or adverse consequences. Since then, on 27 March 2018 the Equality and Human Rights Commission has recommended that Parliament introduce statutory codes with broadly the same effect as the ACAS Codes in that non-compliance would give a Tribunal discretion to award a 25% uplift in any compensation payable. This discernible shift in focus towards calls for legislative intervention was echoed by the publication of the Women and Equalities Committee’s (the “WEC”) Report on Sexual Harassment in the Workplace on 18 July 2018 (the “Report”). The Report made a number of recommendations including to (i) legislate to require the use of standard approved confidentiality clauses and (ii) clarify whistleblowing legislation to make clear exactly which disclosures are protected and those that cannot be prohibited by a confidentiality provision.

(i) Prescribed Confidentiality Clauses

The concept of standard clauses is not new. In a separate context, the introduction of GDPR has seen the ICO publish standard (but not mandatory) clauses to be incorporated in contracts regarding the transfer of personal data. Nonetheless, prescribing the form of confidentiality clauses would hamstring parties during negotiations. A Parliamentary draftsperson could try to devise an all-encompassing provision but those efforts are likely to be unsuccessful. The net effect of this proposal by the WEC may be that for parties particularly concerned with confidentiality issues, they may not be encouraged to resolve matters without litigating.

(ii) Tightening Whistleblowing Legislation

Similar concerns arise regarding the WEC’s proposals relating to whistleblowing legislation. On first reading, widening the definition of protected disclosure to include allegations of sexual harassment may sound appealing. We believe this feeling may be misplaced.

The premise that the current legislation does not protect a disclosure of sexual harassment is incorrect. Actions which could be described as sexual harassment can amount to an offence under several statutes as can actions which cannot be described in such strong terms but nonetheless subject an individual to unfavourable treatment on the basis of their sex (or other protected characteristic as defined by the EA). Assuming the disclosure is made to an appropriate person and in the public interest, such disclosures are certainly capable of qualifying for whistleblowing protection under the Employment Rights Act 1996 (the “ERA”).

Further, the whistleblowing legislation implements the principles of the Public Interest Disclosure Act 1998. Judges are keenly aware of the public policy motivations providing a platform for this legislation and use it to be flexible. Introducing tighter definitions of protected disclosure would unavoidably restrict judges’ ability to be flexible and purposive in their application of whistleblowing protection.

Given that whistleblowing legislation is already capable of protecting the sorts of allegations WEC discussed in their Report and that a fundamental premise relied upon does not seem watertight, implementing definitions as they suggest may be counter-intuitive. In other words, it may limit the scope of whistleblowing protection rather than broaden it.

Scaremongering

In employment law, NDAs are most commonly seen in relation to settlement agreements at the termination of employment. The prevailing concern from lobby groups is that individuals are unaware of what they are and are not entitled to disclose when they are subject to a confidentiality restriction. This is difficult to square with the regulation of these agreements which require a legal adviser to certify that they have advised the individual on the terms of the agreement without which the agreement is unenforceable. Most settlement agreements contain stock phrases such as “except as required or permitted by law” which does accurately limit the breadth of the confidentiality restriction. Even if this were unclear to someone without legal training the involvement of a legal adviser should ensure that individuals are fully informed.

What this means for Businesses

The legal position on the reasonable steps defence and use of NDAs remains unchanged. We do not expect the elements of the Report we have discussed to be adopted. Nonetheless, the particular risk of reputational harm flowing from the unethical use of NDAs in the current socio-political climate should be acknowledged. Businesses should consider seeking advice on the appropriateness of their NDAs and confidentiality clauses. In particular, it would be wise to consider steps to “future proof” the enforceability of such clauses in the event that future legislation is introduced with retrospective effect.

Our employment department has experience and expertise in all of the above areas.

If you would like any further information, please contact Noel Deans or Sean Field-Walton by email at noel.deans@rosenblatt-law.co.uk, sean.field-walton@rosenblatt-law.co.uk or by telephone at 0207 955 0880.

This article should not be taken as definitive legal advice on any of the subject matter covered. If you do require legal advice, please contact Rosenblatt as above.

MediaMonks and WPP- an Opportune Time to Revisit Restrictive Covenants

06/07/2018 | Noel Deans & Sean Field-Walton
On 4 and 5 July 2017 the City AM and other outlets have reported on WPP and Sir Martin Sorrell’s likely upcoming battle over confidentiality and competition. Having exited WPP, the advertising and

On 4 and 5 July 2017 the City AM[1] and other outlets have reported on WPP and Sir Martin Sorrell’s likely upcoming battle over confidentiality and competition. Having exited WPP, the advertising and media goliath that he led as Chairman and Chief Executive Officer on less than good terms, Sorrell swiftly founded a new company called S4 Capital. Days after S4 Capital made a bid for a Netherlands based company called MediaMonks it transpires that WPP had shortly before made their own bid for the same outfit.

As reported by the City AM “[t]he corporate clash is expected to raise questions about WPP’s decision not to make Sorrell sign a non-compete clause preventing him from being involved in any rival marketing ventures after he resigned”.  As such, now is an opportune time to consider our and our clients’ approach to the incorporation of restrictive covenants in employment contracts of staff of all levels, but particularly senior executives.

The basic position

The oft forgotten starting point when considering the terms of restrictive covenants contained within employment contracts is that restrictions must protect the legitimate business interests of the employer.  A failure to closely align the terms of any restriction with this requirement creates a risk of unenforceability. Seeking an answer to what is a legitimate business interest is not a science. It is a question which must always be considered in light of the facts for each individual case.  This will mean taking into account the nature of the employer’s business and the role of the employee in the employer’s business.  Of particular importance is the employer’s likely exposure to confidential client information and/or client relationships or other matters which may give that employee some sway over the goodwill of the employer.  In practice, we are frequently instructed on matters where an employer has not taken due care to tailor restrictive covenants to an individual employee’s circumstances. We suspect that the reader will also be familiar with employers rolling out standard form restrictive covenants across the workforce with little delineation between categories of employee.

Exposures

To be frank, it is rare to encounter an employer who has nothing to worry about when it comes to the restrictive covenants they apply to their workforce. We frequently find ourselves advising on methods to reduce the potential unenforceability exposures we identify.

An inbuilt protection against these exposures is that, in many cases, an employer benefits from their workforce’s inability to judge the enforceability of restrictive covenants for themselves. Some employers benefit from the deterrent effect of including restrictive covenants which are known to be unenforceable owing to the fact that many people do not understand the detail of the rules for determining the enforceability of such terms.

But what can a client do when faced by a sophisticated employee who is more attuned to these issues?  In short, if a restrictive covenant has been included in a contract which is so broad or endures for so long that it does not reflect the realities of the employee’s position there is little for an employer to do besides engage in some posturing which more often than not would include the threat of issuing High Court injunctive proceedings.

At this point, it is again worth emphasising that the enforceability of a restrictive covenant is judged by reference to the point that it was entered into. Clients can be surprised to hear them that a restrictive covenant which would be enforceable if the employee agreed to enter into it now is nonetheless unenforceable because the restrictive covenants were not appropriate when they were entered into. The normal position is that even if an employee’s responsibilities and role enlarge despite not being issued a new employment contract, this development will not operate to make initially unenforceable restrictive covenants enforceable. Note, however, that there are certain limited exceptions to this rule.

Senior staff exits

When dealing with exit negotiations in relation to senior and executive staff like Sorrell, there is often an emphasis on sensitivity and a desire to preserve goodwill. Having regard to such factors is not misplaced; however, the board and/or those in a position to negotiate the terms of an exit including ongoing restrictive covenants must remind themselves of their overriding fiduciary (and sometimes statutory) duties.  These duties require those bound by them to act in the employer’s, not the employee’s best interest.

Perhaps it was a failure to appreciate this which has resulted in WPP and its eponymous former leader being pitted against one another. It is certainly unusual for a senior executive of Sorrell’s pedigree to have unrestrained freedom to act in ways that directly compete with the business of their former employer.

That WPP have ended up in this position is surprising. The apparent absence of a non-competition restrictive covenant in his employment contract/service agreement may be an oversight. What is doubly intriguing is that WPP appear to have missed the opportunity to include the same in any settlement agreement which may have been signed as part of the exit process.

Our employment department has experience and expertise in all of the above areas.

 If you would like any further information, please contact Noel Deans at noeld@rosenblatt-law.co.uk or on 0207 955 1413.

This article should not be taken as definitive legal advice on any of the subject matter covered. If you do require legal advice, please contact Rosenblatt as above.

[1] Issues 3,158 and 3,159

Employment Tribunals – Fees, Costs and Frivolous Claims

31/05/2018 | Noel Deans & Sean Field-Walton
Background and Cost Orders It is old news that in R (on the application of UNISON) v Lord Chancellor the Supreme Court held that the regime of case filing fees for claims brought in the Employment

Background and Cost Orders

It is old news that in R (on the application of UNISON) v Lord Chancellor [2017] the Supreme Court held that the regime of case filing fees for claims brought in the Employment Tribunal was unconstitutional. Generally, comment has regarded this as a success for access to justice.

Employees with meritocratic claims should not be deterred from bringing them because of a fee structure like that which has now been overhauled and which required upfront payments of (generally) between £390 and £1,200. Nonetheless, employees should not be provided with an incentive to bring frivolous claims and to “bet the company” in the hope of receiving an undeserved pay-out.  Regretfully, this is arguably the current reality.

An up front fee regime was always inappropriate and statistics released since the Supreme Court’s decision in 2017 do suggest the fees as they were applied were a barrier to access to justice for individual claimants. However, we frequently act for employers and have seen that the tools available to them to fend off entirely false and opportunistic claims are inadequate.

Options when faced with a frivolous claim

1) Costs Orders

The successful party to proceedings before the Employment Tribunal does not have an automatic right to recover their legal costs from the unsuccessful party as they do in the civil courts. This is often surprising to those of our clients who have not been involved in Employment Tribunal proceedings before. A party may apply for a costs order where the unsuccessful party’s conduct has been unreasonable. This would include pursuing a baseless claim. Sadly, Employment Tribunal judges consistently demonstrate a reluctance to make such orders and when they do their scopes varies quite unpredictably between roughly 20-80% of the costs incurred.

2) Strike Out Applications

A party to proceedings may apply to strike out the other party’s case on a number of grounds. These grounds are set out in Rule 37(1) of the Employment Tribunal Rules of Procedure 2013 (as amended) (the “Procedure Rules”). The most common grounds relied on are that the claim has no reasonable prospect of success and/or that the claim or response is scandalous or vexatious. Just as is the case regarding applications for costs orders set out above strike out applications are rarely successful. This is even more so when the claim includes whistleblowing or discrimination elements because it is established law that in such cases the Employment Tribunal should be extremely slow to award a strike out.

3) Deposit Orders

Another option for a party to proceedings is to apply for a deposit order under Rule 39(1) of the Procedure Rules. These are granted more often than cost orders or strikes outs by Employment Judges but cannot be considered frequent. Furthermore, albeit the award may signal an Employment Judge’s lack of confidence in a claim, the effectiveness of deposit orders are hamstrung by the £1,000 limit on what an Employment Judge can order is paid into the Employment Tribunal.

Meaning for employer respondents

In our experience, the combination of the above often leaves employers in a difficult position. Given the unlikelihood of recovering their costs or successfully striking out a claim an employer is faced with the prospect of incurring significant legal fees (particularly during the disclosure process). In light of this, it is easy to see why an employer may consider that it is best to cut their losses and offer a pay-out even where they know the claims levelled against them to be falsified.

It is certainly correct to recognise the asymmetrical power structures between employers and employees.  However, perhaps it is time to rethink the infrastructure of Employment Tribunals to ensure that employers too are also provided with access to justice and not encouraged to settle false claims. A system which can easily be used to strong-arm employers into making unjustified pay-outs surely cannot be desirable from a legal or policy perspective.

Moving forward

Our view is that the Supreme Court’s decision was correct. However, without encouraging Employment Judges to utilise the powers available to them to dissuade litigants from putting employers to costs in the hope of extracting a pay-out the system does seem loaded in favour of potential opportunist claimants. This is no fault of the Supreme Court’s. It is not their duty to legislate for a supplementary structure following their effective abolition of Employment Tribunal filing fees. Instead, we suggest that in light of the Supreme Court’s decision Parliament should consult on the issues set out in this bulletin. Our expectation is that our observations would be shared.

It may be time to reconsider the position that the unsuccessful party does not have to meet any of the successful party’s costs unless the successful party makes a successful costs application. Perhaps any such rule will need to be a diluted version of the same rule in the civil courts.  Maybe this could be in a rule that costs will follow the claim in an amount that the Employment Judge considers just having regard to all the facts of the case, including the strength of the evidence.

One way or another, the Employment Tribunal system and the practices within it may benefit from a recalibration so that access to justice is preserved for both the employee and the employer.

Our employment department has experience and expertise in all of the above areas.

 If you would like any further information, please contact Noel Deans at noeld@rosenblatt-law.co.uk or on 0207 955 1413.

This article should not be taken as definitive legal advice on any of the subject matter covered. If you do require legal advice, please contact Rosenblatt as above.

Wrotham Park no more – moving forward with negotiating damages

03/05/2018 | Noel Deans & Sean Field-Walton
Morris-Garner and another (Appellants) v One Step (Support) Ltd (Respondent) UKSC 20 In Morris-Garner the Supreme Court had the opportunity to consider damages awards for breach of contract based o

Morris-Garner and another (Appellants) v One Step (Support) Ltd (Respondent) [2018] UKSC 20

In Morris-Garner the Supreme Court had the opportunity to consider damages awards for breach of contract based on the price that would have been hypothetically negotiated for releasing the restrictive term. It follows that from handing down of the judgment on 18 April 2018, Morris-Garner is now the leading case on the matter and should be a point of reference for practitioners and employers alike.

Background and Wrotham Park

The remedy for breach of contract is often given little more explanation than the often repeated phrase: “the measure of damages for breach of contract is to put the innocent party in the position that they would have been in had the contract been performed”. Damages are usually awarded in circumstances where a party can be considered to have suffered some financial loss through breach or non-performance of a contractual term. As such, they are usually considered compensatory. Nonetheless, in some cases, including those where enforcement is sought for breaches of restrictive covenants contained in employment contracts, injunctive proceedings in the High Court are another source of recourse.

There are, however, other scenarios where there is no clear economic loss suffered and an injunctive remedy is considered inappropriate. Wrotham Park Estate Co Ltd v Parkside Homes Ltd [1974] was one such case. In Wrotham Park, a plot of land was sold subject to restrictive covenants on the development of a portion of that land. Ultimately, that land was transferred to a property developer who was not aware of the said restrictions. The developer proceeded to develop the land in breach of that restriction.

Despite being aware of plans to develop the land and a grant of planning permission, the party holding the right to enforce that restrictive covenant only made their objection known when they applied for an interim injunction against the developers. This was after the development had begun. Albeit the injunction was sought at an early stage of the development, Brightman J decided that although the claimant would ordinarily be entitled to an injunction it should be rejected as a matter of discretion. The state of law at the time suggested that no or nominal damages should be awarded as the claimant had suffered no financial damage from the breach of contract. Nevertheless, the claimant was awarded a sum equal to that which the Court considered they would have received on a negotiated release of the restrictive covenant; 5% of the developer’s anticipated profit. The award of damages on the basis of a hypothetical negotiation has until this point tended to be referred to as “Wrotham Park” damages. In Morris-Garner, the Supreme Court said that they prefer to call these “negotiating damages” and therefore we adopt this terminology for the purposes of this article.

The facts of Morris-Garner

Morris-Garner involved a joint venture between two defendants and the claimant. The joint venture provided rented accommodation and support services to enable vulnerable individuals referred by local authorities to live as independently as possible. In 2006, the first defendant transferred her 50% shareholding to the claimant in return for £3.15 million. The first defendant was subjected to confidentiality, non-solicitation and non-competition covenants running for three years. Within the restricted period and in breach of those restrictive covenants the first and second defendant founded and operated a business in competition with that of the claimant. In the words of Lord Reed who delivered the leading judgement on behalf of the Supreme Court in this case:

“[the claimant] sought an account of profits, or alternatively what were described as restitutionary damages, in such sum as it might reasonably have demanded as a quid pro quo for releasing the defendants from those covenants, or, in a further alternative, what were described as compensatory damages for the loss it had suffered by reason of the defendants’ breach of those covenants.”

                                                                                             Emphasis added.

The first instance judge applied Wrotham Park by saying that the claimant could elect to either receive negotiating damages calculated as the fee the defendants would have had to pay to be released from their obligation, or alternatively compensatory damages in the form of lost profits or possibly goodwill. At the Court of Appeal, this decision was upheld. That Court considered the test for whether negotiating damages could be awarded was whether an award of damages on that basis was a just response in the particular case which was a matter for the judge to decide on a broad brush basis.  The Supreme Court ruled that both the first instance judge and the Court of Appeal had taken an approach that could not be considered to be correct. The salient areas of the judgment in Morris-Garner are set out below.

A theoretical objection?

At paragraph 91 Lord Reed dealt with what some had argued was a bar to the award of damages on a negotiated damages basis, namely that “[t]he use of an imaginary negotiation can give the impression that negotiation damages are fundamentally incompatible with the compensatory purpose of an award of contractual damages”. He did so by stressing that the relevant contractual right should be conceptualised as an asset and an economic value being given to the fact that a party had been deprived of it.

Understanding contractual rights as assets

He also accepted at paragraph 95(9) that the normal inference “[w]here the claimant’s interest in the performance of a contract is purely economic, and he cannot establish that any economic loss has resulted from its breach” would be that they have suffered no loss and in that event, they could not be awarded more than nominal damages. However, he goes on to explain at paragraph 95(10) that “negotiating damages can be awarded for breach of contract where the loss suffered by the claimant is appropriately measured by reference to the economic value of the right which has been breached, considered as an asset”. The hypothetical negotiating is only a means of reaching a value.

No right to elect how damages are assessed

In rejecting the approach taken by both the judge at the first instance and by the Court of Appeal, Lord Reed at paragraph 96 clarified that no claimant is entitled to elect how their damages are assessed. Part of this confusion may have been caused by a misunderstanding of the previous cases which could be seen as treating Wrotham Park assessments as some entirely separate means of assessing damages. Shutting down this view, Lord Reed emphasised that using an imaginary negotiation is “merely a tool” for assessing the value of a financial loss.

Concluding thoughts

Morris-Garner has been remitted to the lower courts for the Court to consider the financial loss and/or loss of goodwill which the claimant has actually sustained.

Claimants should be encouraged in that the Supreme Court has clearly enunciated that an inability to show clear financial loss is not necessarily the be all and end when seeking a damages award for breach for contract.

By providing authoritative clarification on an area of law with confused reasoning, Morris-Garner has narrowed the scope for seeking negotiating damages. The Supreme Court is clear that the ordinary inference if no clear loss can be proven is that no or nominal damages should be awarded.

Nonetheless, claimants should fully explore recovering damages on a negotiated damages basis where they cannot easily identify a financial loss but can put an objective economic value to a benefit protected by the contractual term that has been infringed.

Negotiating damages are not understood as a departure from ordinary compensatory damages. They are ordinary damages awarded following the use of a hypothetical negotiation used to assist a judge in calculating the economic value of an asset or a right that is taken or infringed through breach of a contractual term.

Our employment department has experience and expertise in all of the above areas.

 If you would like any further information, please contact Noel Deans at noeld@rosenblatt-law.co.uk or on 0207 955 1413.

This article should not be taken as definitive legal advice on any of the subject matter covered. If you do require legal advice, please contact Rosenblatt as above.

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