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EAT provides guidance on Certification Officer’s jurisdiction
Posted on 25 September, 2024Summary HHJ Tayler held that the Certification Officer did not err in law in striking out two complaints about an election for the position of secretary of the Lancashire branch of UNISON in Fe...
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The Supreme Court makes a declaration of incompatibility in Mercer
Posted on 24 April, 20241. Lady Simler has provided the Supreme Court’s much anticipated Judgment in Secretary of State for Business and Trade (Respondent) v Mercer (Appellant) [2024] UKSC 12. The Court allowed Ms Merc...
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Kickabout and Atholl House – changing the landscape of employment status
Posted on 26 May, 2022In both Kickabout Productions Ltd v HMRC [2022] EWCA Civ 502 (Kickabout) and HMRC v Atholl House Productions Ltd [2022] EWCA Civ 501 (Atholl House) the Court of Appeal considered the application of th...
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Can a claim be struck out inadvertently? – Mendy v Motorola Solutions UK Limited
Posted on 10 May, 2022The title of this article is taken from the first paragraph of the judgment of the President of the Employment Appeal Tribunal (Eady J) in Mendy v Motorola Solutions UK Limited and others [2022] EAT 4...
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IR35 and employment status – restating the importance of the contract?
Posted on 04 May, 2022In Kickabout Productions Ltd v HMRC [2022] EWCA Civ 502 (Kickabout) and HMRC v Atholl House Productions Ltd [2022] EWCA Civ 501 (Atholl House), the Court of Appeal considered for the first time the ap...
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BT v Robertson: overlapping medical conditions in disability discrimination cases
Posted on 26 November, 2021In BT v Robertson UKEAT/229/20/RN the EAT considered a case in which the Claimant had suffered from multiple, overlapping medical conditions which affected his ability to work. The judgment illustrate...
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Case note on Kostal UK Ltd v Dunkley and others [2021] UKSC 47
Posted on 27 October, 2021UK Supreme Court removes veto threat but requires full collective bargaining before any direct offers. The Decision In Kostal UK Ltd v Dunkley and others [2021] UKSC 47 the Supreme Court consid...
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Fire-and-Rehire – is it lawful?
Posted on 06 July, 2021This blog was originally published in July 2021. In July 2022, Andrew Burns QC and Marianne Tutin revisted this topic for ELA Briefing. The full updated article can be found here. During the C...
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How much do you need to know?: Litigants in person and strike-out applications: identifying the issues in complex claims
Posted on 02 July, 2021In July's Practical Law Employment and Discrimination Blog, Sam Way considers the implications of the recent EAT decision in Cox v Adecco which clarified the duties on respondents to assist litiga...
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Still sleeping on the job? Supreme Court upholds Court of Appeal decision on national minimum wage for sleep-in workers
Posted on 17 May, 2021"Many employers, from factories to care homes to call centres, require workers to perform tasks overnight. Sometimes, however, the tasks arise so intermittently and unpredictably that an employer just...
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What Next for Status after Uber?
Posted on 24 March, 2021The dust has now started to settle on the Supreme Court’s decision in Uber BV v Aslam [2021] UKSC 5 (‘Uber (SC)’). In this blog, Hitesh Dhorajiwala and Jesse Crozier examine to what ...
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Berkeley Catering Ltd v Jackson: a case of malicious redundancy
Posted on 19 February, 2021"In the context of the ongoing COVID-19 pandemic, many employment practitioners are seeing an increase in instructions relating to redundancy processes. The first stage o...
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Missing the deadline for a response: what steps should a respondent take?
Posted on 20 November, 2020In the latest Practical Law Employment and Discrimination Blog, Marianne Tutin examines steps that a respondent ought to take to participate substantively in proceedings when the deadline fo...
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Legal advice is privileged no matter where it’s from
Posted on 08 October, 2020In the latest Practical Law Employment and Discrimination Blog, Sam Way at looks at the implications of the High Court decision in PJSC Tatneft v Bogolyubov and others [2020] EWHC 2437 that legal...
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Are foster carers employees? It’s all in the contract
Posted on 03 September, 2020Glasgow City Council v Johnstone & Johnstone UKEATS/0011/18/JW The Employment Appeal Tribunal (Scotland) held that foster carers who entered into a special arrangement with the local authority as...
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VL and indirect discrimination
Posted on 11 August, 2020In his opinion in VL v Szpital Kliniczny im. dra J. Babińskiego, Samodzielny Publiczny Zakład Opieki Zdrowotnej w Krakowie (Case C-16/19) EU:C:2020:479, Advocate General ...
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Podcast: Volunteering while on furlough
Posted on 02 June, 2020Episode 3 of The Devereux COVID-19 Employment Law Podcast is now available. In this edition, Sebastian Purnell and Sam Way discuss the issues that arise when furloughed employees c...
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Guidance on the Coronavirus Job Retention Scheme: what is its legal effect?
Posted on 02 June, 2020It seems that every week since the end of March has been marked by a further update to the government’s guidance regarding the Coronavirus Job Retention Scheme (CJRS). The scheme was a...
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Podcast: Collective Consultation
Posted on 14 May, 2020Episode 2 of The Devereux COVID-19 Employment Law Podcast is available now. Katya Hosking is in conversation with Andrew Burns QC, discussing the impacts of the covid19 crisis on c...
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Returning to work - a right to refuse?
Posted on 13 May, 2020Whilst some people have remained at work during the period of full “lockdown”, at the time of writing we have now reached the point where the Government is actively encouraging those who "...
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Podcast: The COVID-19 Standing Working Group
Posted on 28 April, 2020The Devereux Employment team are pleased to launch their brand new podcast series. Every fortnight, a new episode exploring the impacts of the COVID-19 pandemic on UK Employment Law will be released. ...
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Limiting liability for wages during furlough
Posted on 21 April, 2020In the first case addressing the Coronavirus Job Retention Scheme, the High Court reviewed whether contracts of employment had been successfully varied to limit an employer’s liability to pay wa...
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Whistleblowing Beyond your Employer: Coronavirus and the NHS
Posted on 16 April, 2020The NHS has always proved fertile ground for employment litigation, and particularly complex whistleblowing claims. In this second of our two-part examination of whistleblowing issues in a COVID...
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Whistleblowing in a coronavirus (COVID-19) world
Posted on 09 April, 2020In layman’s terms, whistleblowing is the raising of a concern, either within the workplace or externally, about a danger, risk, malpractice or wrongdoing. From Dr Li Wenliang to Captain Brett Cr...
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Managing ET and EAT litigation during the pandemic
Posted on 27 March, 2020There has been a flurry of Presidential Guidance in respect of the management of Employment Tribunal (“ET”) and Employment Appeal Tribunal (“EAT”) cases in response to the COVI...
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Retention of staff during the COVID-19 outbreak
Posted on 17 March, 2020Developments in recent days have posed problems for large and small employers alike: how to pay and retain employees despite a severe drop-off in business. News reports have shown that this problem ma...
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Coronavirus (COVID-19): key employment law issues
Posted on 12 March, 2020Over the last four months or so, we have all become rather more familiar than we would have liked with COVID-19 (or coronavirus, as it is better known), with a return to masks on the Underground (retr...
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Employee Fraud: A Sorry Tale
Posted on 26 February, 2020Employee fraud is dramatically on the increase – figures from ActionFraud showed that businesses in the UK lost £682m through fraud in 2018-2019, with the largest category being that carri...
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Does a belief that sex is biologically immutable amount to a philosophical belief protected by the Equality Act 2010?
Posted on 21 February, 2020This is the question which the employment tribunal has recently grappled with in Forstater v CGD Europe and others. Ms Forstater was a researcher wh...
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Do they have the right to work: a review of Badara v Pulse Healthcare Ltd
Posted on 29 November, 2019Employers who engage workers with no right to work in the UK can suffer severe consequences, including significant civil penalties. However, dismissing workers or refusing to employ workers based on a...
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Directors beware
Posted on 08 October, 2019In 2017/2018, HMRC identified a record £15.6 million in national minimum wage (NMW) underpayment. More than 200,000 workers were found to have been underpaid, the highes...
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Religious expression and social media: the need for careful exercise of judgment
Posted on 01 October, 2019In a democratic society people with deeply-held religious views should be free to express them. The professions which serve the public should do so without improper discrimination. Must these principl...
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Applications for witness orders: opportunities to respond
Posted on 14 August, 2019Claimants and respondents in the employment tribunal should always think carefully before applying for the tribunal to use its power under rule 32 to order the attendance of a witness to give evidence...
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EAT decides that transnational employers can make business changes without waiting for an opinion from a European Works Council
Posted on 07 August, 2019After a drought of nearly twenty years and on the brink of a possible Brexit, the EAT has now heard its first two appeals about the workings of European Works Councils (‘EWCs’). Hinrichs v...
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An EAT Review of Whistleblowing: Simpson v Cantor Fitzgerald Europe
Posted on 10 July, 2019In Simpson v Cantor Fitzgerald Europe (UKEAT/0016/18/DA) the Employment Appeal Tribunal considered a range of commonly disputed points of law concerning “whistleblowing”. Alice Mayhew appe...
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Interested in the blue pencil: Restrictive Covenants in the Supreme Court
Posted on 08 July, 2019As the only implied obligation in a contract of employment to survive post-employment is the duty of confidence, any other regulation of the conduct of an ex-employee must be done by an express post-t...
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Confederación Sindical de Comisiones Obreras (CCOO) v Deutsche Bank SAE: practical implications and recording working time
Posted on 28 June, 2019Introduction and substance of the claim In Federación de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE (Case C-55/18) EU:C:2019:402, a group action was brought by a number of trad...
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Reform of IR35 in the private sector
Posted on 06 June, 2019These are interesting times for employment status. The courts and tribunals have considered the status of couriers, plumbers and National Gallery guides. The Government has published its response to t...
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No discrimination in Shared Parental Leave appeals
Posted on 24 May, 2019The Court of Appeal ruled on 24 May 2019 in the eagerly awaited appeals by men on shared parental leave who were paid less than women on maternity leave. It held that: There is no direct disc...
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Reasonable and proper cause for suspension
Posted on 02 May, 2019In The Mayor & Burgesses of the London Borough of Lambeth v Simone Agoreyo [2019] EWCA Civ 322, the Court of Appeal confirmed that suspension of an employee is to be treated like any other alleged...
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Employment Appeal Tribunal gives first judgment on European Works Councils
Posted on 26 March, 2019In what could potentially be the last days of the UK as a member of the EU, the EAT has recently published its first judgment on the workings of European Works Councils (EWCs) – Lean v ManpowerG...
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The Good Work Plan: what next for employment law?
Posted on 28 February, 2019At the end of 2018, the government announced the Good Work Plan, which develops its response to the Taylor Review. It describes the plan as “the biggest package of workplace reforms for over 20 ...
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Confidentiality in the Age of the Public Register
Posted on 31 January, 2019Does your case involve matters of national security? Are those matters so important that the Crown has applied for it to be excluded from the Public Register of judgments? Probably not – and so ...
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Office banter: a dangerous path to tread?
Posted on 10 December, 2018There are some phrases which make an employment lawyer's heart sink, and pride of place amongst them undoubtedly goes to "but it was just office banter". Usually a signal that something offensive ...
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Specific Disclosure: a recent case on “the iniquity principle”
Posted on 29 October, 2018Parties often seek to rely on privilege as a reason for declining to provide disclosure, specifically legal advice privilege, or litigation privilege. The former protects confidential communications b...
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Court of Appeal rules on territoriality - the standard of review, choice of law clauses, and freedom of expression
Posted on 22 October, 2018The Court of Appeal handed down judgment last week in conjoined appeals: The British Council v Jeffery and Green and SIG Trading Ltd [2018] EWCA Civ 2253. The judgment provides guidance on the follow...
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“Osipov” revisited – confirmation co-workers at personal risk for “whistleblower” dismissals
Posted on 22 October, 2018In (1) Timis (2) Sage v Osipov [2018] EWCA Civ 2321, the Court of Appeal has unanimously confirmed the EAT decision in International Petroleum Ltd & Ors v Osipov & Ors (EAT/0058/17/DA) th...
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A Case of Bad Faith?
Posted on 27 September, 2018If something is not done in good faith, then one might think it must have been done in bad faith. The two terms appear mutually exclusive, and the man on the street would be forgiven for thinking that...
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High Court rules interim declaration a “very exceptional remedy” in contractual disputes
Posted on 25 September, 2018Employment lawyers will be very familiar with principles governing applications for injunction, but perhaps rather less so with applications for interim declarations brought pursuant to CPR 25.1(1)(b)...
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Sleeping on the job? Court of Appeal overturns EAT on national minimum wage for sleep-in workers
Posted on 04 September, 2018Until recently, a series of EAT decisions stretching back more than a decade appeared to establish that some sleep-in workers were entitled to be paid at the rate of the national minimum wage (NMW) fo...
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First-tier Tribunal: clarity on taxation of compensation for discrimination during employment
Posted on 06 July, 2018A perennial question for lawyers advising on schedules of loss or settlement agreements is whether the sums received by the claimant will be taxable as earnings and therefore subject to income tax and...
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Expectations as obligations: woolly thinking on mutuality of obligation
Posted on 20 June, 2018Those interested in the tests for employment status continue to be rewarded by the stream of gig economy cases working their way upwards from the Employment Tribunal (ET), through the Employment Appea...
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Court of Appeal delivers important judgment on liability of the union for its officials
Posted on 29 May, 2018The Court of Appeal handed down judgment last week in Nailard v Unite the Union [2018] EWCA Civ 1203, an important case which considered whether (1) elected branch officials could be ‘agent...
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City of York Council v Grosset
Posted on 22 May, 2018In City of York Council v Grosset [2018] EWCA Civ 1105 the Court of Appeal has approved the approach of the Employment Appeal Tribunal to discrimination arising from disability under the Equality Act ...
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Shared Parental Leave
Posted on 09 May, 2018Introduction The EAT has recently handed down two decisions on shared parental leave: Capita Customer Management v Ali & Working Families (Intervenor) UKEAT/0161/17 and Hextall v Chief Constable ...
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Personal liability: indirect discrimination and Maclay
Posted on 13 April, 2018Employment tribunal claims dealing with the issue of personal liability are being considered with increasing frequency. Claimants often only consider such claims due to concerns over the possible inso...
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The Presidents Club and third party harassment
Posted on 15 February, 2018Last month's revelations about the Presidents Club fundraising dinner, at which female hostesses were reportedly harassed by male guests, has raised questions about the third party harassment prov...
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Substitution and worker status
Posted on 11 December, 2017Introduction 2017 has seen a series of cases concerning limb (b) worker status in the ‘gig economy.’ Individuals have claimed entitlements to be paid the minimum wage, holiday pay and so ...
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Early conciliation: a relaxed approach or not?
Posted on 30 November, 2017A recent series of cases before the EAT have highlighted the complexities faced by respondents when determining whether to challenge the ET’s jurisdiction where a claimant has failed to comply w...
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Lightening the load? Discrimination and the burden of proof in Efobi v Royal Mail Group Ltd
Posted on 13 October, 2017In Efobi v Royal Mail Group Ltd UKEAT/023/16, the EAT considered the proper interpretation of the burden of proof provision in section 136 of the Equality Act 2010 (EqA 2010). The burden of proof pro...
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Individual liability for whistleblowing detriment: International Petroleum Ltd & Ors v Osipov & Ors
Posted on 31 July, 2017“It is likely to be an unusual case where an employee will wish to pursue a claim and seek a remedy against a fellow worker for a whistleblowing detriment amounting to dismissal, rather than pur...
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Long Awaited Court of Appeal decision considers ‘public interest’ test in whistleblowing protection
Posted on 11 July, 2017The Court of Appeal has considered the meaning of the words “in the public interest” which were added to whistleblowing legislation by the Enterprise and Regulatory Reform Act 2013 in orde...
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Employment Tribunal general damages uplifted by 10%
Posted on 05 July, 2017The Court of Appeal has finally resolved the vexed question of whether the Simmons v Castle uplift on general damages, intended to counterbalance costs reform in the civil courts, should apply to inju...
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Lapsed disciplinary warnings and dismissal: a new approach
Posted on 29 June, 2017Everyone knows that it is always impermissible to take a lapsed warning into account when deciding whether to dismiss an employee. According to the Court of Appeal and the Employment Appeal Tribunal, ...
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A 10% uplift to all injury to feelings and personal injury awards in the Employment Tribunal? The Court of Appeal reserves its decision and considers involving the Attorney General
Posted on 25 May, 2017In Simmons v Castle [2013] 1 All ER 334 the Court of Appeal declared that from 1 April 2013 awards of general damages in “all civil claims for (i) pain and suffering, (ii) loss of amenity, (iii)...
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Indirect discrimination goes back to its roots: disparate impact approach upheld in Essop
Posted on 27 April, 2017In Essop and others v Home Office (UK Border Agency) [2017] UKSC 27 the Supreme Court, overturning a decision of the Court of Appeal (and the original employment tribunal) has held that indirect discr...
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Govia derailed – appeals to EU law rejected by the Court of Appeal
Posted on 06 March, 2017Govia GTR Railway Limited v ASLEF [2016] EWCA Civ 1309 was the first occasion on which an application to restrain industrial action based on European Law had been made in an English court. The series ...
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Never mind the ballots………. …..here’s the Trade Union Act
Posted on 01 March, 2017Finally, the wait is over. The Trade Union Act 2016 (“TUA”), which received royal assent as long ago as May last year, is brought substantially into force with effect from 1 March 2017. Wh...
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Online publication of Employment Tribunal judgments: what next?
Posted on 27 February, 2017The Ministry of Justice (‘MOJ’) recently launched its website of Employment Tribunal (‘ET’) decisions. At present, the website contains around 140 past decisions from 2015 onwa...
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Worker or not?
Posted on 13 February, 2017Employment status has received a lot of recent press coverage, in particular in the ‘gig’ economy – Uber, CitySprint, Deliveroo. It is an area of law in which advisers and in p...
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All change at the Employment Tribunal?
Posted on 17 January, 2017Employment lawyers, as well as their clients, might well be forgiven for hoping that the only change on the horizon in regard to the system of employment litigation would be clarity as to the status a...
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