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Injury to Feelings and the Working Time Regulations

The Court of Appeal has held that compensation for injury to feelings is not available for failing to provide rest breaks under the Working Time Regulations 1998 (‘WTR’).

Pursuant to Regulation 12 (1) of the WTR, workers are entitled to unpaid rest breaks of 20 minutes when working for more than 6 hours per day.

Whilst workers may be required to remain at work or in close proximity to their workplace while taking a rest break, they should not be required to perform any duties.

Where an employer has infringed a worker’s entitlements under the WTR, a worker is able to bring a claim to the Employment Tribunal.  An Employment Tribunal must make a declaration that the worker’s entitlements have been infringed and may make an award of compensation where the complaint is well-founded.

The amount of compensation is such as the Tribunal considers just and equitable in all the circumstances.

Injury to feelings awards have historically been made under discrimination legislation and have also been available in whistleblowing detriment claims. Conversely, compensation for unfair dismissal and breach of contract does not include compensation for injury to feelings.

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Employment Law Round-Up - New Rates and Limits

It’s that time of year again in which employers have to familiarise themselves with the increases in compensation limits, statutory payments and the National Minimum Wage.

The new rates for 2018/2019 are as follows:


Statutory payments for time off work:

Maternity/Adoption pay prescribed rate (max)                                                                                        


Paternity pay (max)

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The Unspoken Cause of Workplace Absences

There are many reasons why an employee may be required to take time off work, but did you know that mental health conditions are now the most common work-related illness?

Workplace absences can range from childcare responsibilities to work-related illness, however, according to a recent announcement by the Health and Safety Executive, the number of UK workers that suffered from mental health conditions which included work-related stress, depression and anxiety have risen by nearly 10% to 526,000 in the year 2016/2017.

What does this mean for businesses and the UK economy as a whole?

The Health and Safety Executive estimates that mental health conditions account for an annual average of 12.5 million working days lost; a cost to the UK economy of between £33-£42 billion.

It is estimated that 1 in 4 people in the UK will experience a mental health problem each year, meaning that, in a workforce of 40 people, 10 individuals may experience a mental health condition.

In England, 1 in 6 people report experiencing a common mental health condition such as anxiety and depression in any given week.

According to the statistics gathered by Mind, 7.8 people in 100 will suffer mixed anxiety and depression, whilst 5.9 in 100 people will suffer from a generalised anxiety disorder, and 3.3 in every 100 people will have to deal with an overall depressed state of being and mind.

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Pay Inequality - a Form of Bullying in the Workplace?

The BBC has been back in the news this month following the damaging revelations regarding the inequality of pay between male and female presenters. 

It is alleged that the BBC forced presenters to form companies and treat themselves as freelancers, resulting in them being left with very little employment protection involving matters such as holiday or sick pay.

Kirsty Lang, presenter of the Art Programme Front Row since 2004, gave evidence to the Commons Cultural Committee in which she stated that all her worst fears came true when she was moved onto a new contract.

She stated that she was unable to take bereavement leave; “In fact, I went back and did my first show even before [her step-daughter’s] funeral, because I had to get some money in”.

She went on to state that “...and then two years after that, I was diagnosed with Cancer.  I had surgery, radiotherapy, chemotherapy and hormone therapy. I worked the whole way through”.

In response to the comments made at the Commons Culture Committee, the BBC said in their statement that “they always try to balance our responsibility to presenters with our responsibility to suspend the licence fee appropriately”.

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Employers - Get Ready For GDPR

You have unlikely escaped the General Data Protection Regulations (GDPR) which will take effect on 25 May 2018. We look at what this means for businesses and employers.

Currently, the UK relies on the Data Protection Act 1998, which was enacted following the 1995 EU Data Protection Directive. Some of the new regulations mirror those found under this Act, but as of May this year, all will be superseded by the new legislation. GDPR aims to introduce tougher fines for non-compliance and breaches and gives people more say over what companies can do with their data. It also makes data protection rules more or less identical throughout the EU.

Under Article 5 of the regulations it requires that personal data shall be:

  1. Processed lawfully, fairly and in a transparent manner in relation to individuals;
  1. Collected for specified, explicit and legitimate purposes and not further processed in a manner that is incompatible with those purposes: further processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes shall not be considered to be incompatible with the initial purposes;
  1. Adequate, relevant and limited to what is necessary in relation to the purposes for which they are processed;
  1. Accurate and, where necessary, kept up to date: every reasonable step must be taken to ensure that personal data that are inaccurate, having regard to the purpose to which they are processed, are erased or rectified without delay;
  1. Kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the personal data are processed; personal data may be stored for longer periods insofar as personal data will be processed solely for archiving purposes in the public interest, scientific or any public interest, scientific or historical research purposes or statistical purposes subject to implementation of the appropriate technical and organisational measures required by the GDPR in order to safeguard the rights and freedoms of individuals; and
  1. Processed in a manner which ensures appropriate security of the personal data including protection against unauthorised or unlawful processing and against accidental loss, destruction or damage, using appropriate technical or organisational measures.

Article 5(2) of the regulations requires that the controller should be responsible for, and be able to demonstrate compliance with the principles. So, in short, what does that all mean for you?

As a business, you must have a lawful basis in order to process personal data. Article 6 of the regulations sets out the lawful basis for processing data.  At least one of these must apply whenever you process personal data. The lawful bases for processing data are:

  • The data subject has given consent to the processing of his or her personal data for one or more specific purposes.
  • Processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract.
  • Processing is necessary for compliance with a legal obligation to which the controller is subject.
  • Processing is necessary in order to protect the vital interests of the data subject or of another natural person.
  • Processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller.
  • Processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child.

You must determine the lawful basis (or base) before you begin processing and should document it, as well as the purposes for processing. Privacy notes should be updated in compliance with the new regulations.

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Upcoming PILON, NMW and SMP Changes Afoot

Employers should be aware of the impending changes to payments in lieu of notice (PILON), National Minimum Wage (NMW) and Statutory Maternity Pay (SMP).

From April 2018, taxation of redundancy payments in relation to payments in lieu of notice (PILON) will be changing. The general rule prior to this upcoming alteration was that if an employee’s contract did not contain a PILON clause, and it was not normal practice for the employer to make such payments, then notice could be made without deduction of income tax and national insurance contributions, as long as the sum falls under the tax free threshold of £30,000.

If the employment contract contained a PILON clause, then the notice sum was viewed as earnings and subject to the normal deductions for tax and national insurance contributions as one would expect.

From April 2018, all notice pay will be subject to both tax and national insurance contributions, regardless of the contractual provision. Employers should take note that this will also include bonuses, commission or any other monies that would have arisen during the notice period as set out in the contract of employment or service agreement. As such, employees and employers will not be able to utilise the tax-free threshold of £30,000 for such payments.

HMRC are likely to seek to recover the income tax and national insurance contributions together with penalties and interest owed, should employers seek to classify a PILON as non-taxable.

Where an employee and employer have entered into a settlement agreement, it is common to see a tax indemnity regarding the payment being made, i.e. that the employee is indemnifying the employer for any income tax or employee national insurance contributions, interest and penalties should HMRC determine that tax and/or national insurance is due in respect of the payments made.

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Gender Inequality at Work is still Big News

It is unlikely that you have escaped the news that the BBC’s China Editor, Carrie Gracie, resigned from her role, citing pay inequality.

It was uncovered that male international editors were earning more than Ms Gracie’s salary of £135,000 per year. In comparison, the BBC’s US Editor earned between £200,000 and £250,000 whilst the BBC’s Middle East Editor earned between £150,000 and £200,000.

When the BBC published the yearly salaries of staff that earned over £150,000 in July last year, women accounted for just a third of the BBC’s biggest earners, with only one woman in the top nine. Ms Gracie did not appear on the list.

Across the BBC, the average pay of men is 10% higher than women. The BBC has stated openly that it hopes to close the ‘Gender Pay Gap’ by 2020. 

It is said that the UK Gender Pay Gap was 9.4% for full-time workers or 18.1% for all staff in 2016.


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The Office Christmas Party – Top Tips for Employers

It’s the time of year when companies are gearing up for their office Christmas party – we hand out our top tips for employers to ensure fun for all.

The office Christmas party is traditionally a time when employees are at their most relaxed; especially when the consumption of alcohol is on the cards. As a result of this, a number of potentially difficult issues can arise for employers.

Our Employment Solicitor Alex Pearce has rounded up his top tips for employers during the festive period to ensure that the Christmas cheer is evident for everyone.


Does a suspended employee have the right to attend the office Christmas party?

The simple answer is maybe. Employers should give careful thought as to the reason why the individual was suspended in the first place. Does that reason justify said individual being required to remain away from the Christmas party which is, after all, a work social event? If the individual is in a customer-facing role and was suspended because of an external customer complaint, which was generally not related to his conduct, then the employer may have little or no grounds to justify asking the individual to stay away from a social event. Equally, if an allegation of harassment has been made, then it would be reasonable for the employer to take a view that the suspended employee shouldn’t attend the office Christmas party, or indeed attend any other social event connected with their employment.


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ACAS Early Conciliation – What Does It Mean?

As of May 2014, ACAS Early Conciliation has become a mandatory requirement. But what exactly does this mean for employers and employees?

Save from a limited number of claims, an individual who wishes to bring a claim at the Employment Tribunal must first contact ACAS; this includes claims for the following disputes:

  • Unfair dismissal
  • Discrimination
  • Redundancy payment or disputes over selection procedures
  • Deduction from wages, unpaid notice or holiday pay
  • Right to time off or flexible working
  • Equal pay

Ordinarily, it is for an employee to make contact with ACAS to initiate the process. It is, however, possible for an employer to initiate the process, should they wish to do so - there may well be times which it would be tactically advantageous for an employer to do so. Employers should note, however, that the time for the employee to issue a claim will not be stopped and there will be no extension of time.


What is ACAS Early Conciliation and what steps does an employee need to take?

Firstly, the employee will need to complete the ACAS Early Conciliation notification form which can be accessed online. Employees should considering using the employer’s appeal or grievance procedure, or letting such process runs its course before contacting ACAS, unless by doing so would result in the employee from being ‘out of time’.

Like with civil claims, there are time limits that both employees and employers should be aware of. For the majority of employment tribunal claims, the time limit is three months less one day. This is referred to as the limitation period.

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Employment Law - New Acas Guidelines Published

Acas, the Advisory, Conciliation and Arbitration Service for employers and employees alike has published new guidance on supporting working parents and trans employees.

Supporting working parents with ill or premature babies

The new advice published by Acas is geared towards assisting employers in supporting staff who have given birth to premature or ill babies, and employers are recommended to familiarise themselves with the new guidelines.

Advice for employers includes:

  • Being compassionate and sensitive in all communications
  • Being discrete. An employer should ask the parents what they would like to tell their colleagues about their situation. Understandably, some parents would like to keep the matter private.
  • Making employees aware of statutory entitlements to leave. This would include shared parental leave which must be taken between the baby’s birth and first birthday; and
  • Trying to be flexible when parents return to work as the baby may have follow-up appointments or treatment. Time off may be required.

The full article on supporting working parents with ill or premature babies can be found here.

Supporting trans employees in the workplace

Acas has published a new research paper on supporting trans and intersex employees in the workplace.

The research paper covers the legal and policy issues when employing trans and intersex workers. It also considers barriers, challenges and suggestions for change.

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Sponsors of the HCCI Business Showcase

Havering Chamber of Commerce & Industry will host a Business Showcase on Monday 9th October at Queens Theatre Hornchurch, and Pinney Talfourd are sponsoring the event.

Havering businesses, small and large, will be attending a Business Showcase and Networking Exhibition in October, organisd by HCCI in association with Queens Theatre, Hornchurch.

Date: Monday 9th October 2017

Time: 6.30pm - 9.30pm

Venue:  Queen's Theatre, Billet Lane, Hornchurch, RM11 1QT

HCCI's mission is to promote a positive, balanced, vital economy and preserve those unique qualities that are good for business and make Havering a very special place in which to live and work.  With a full house of business exhibitors, the event will be opened by the Mayor of Havering and will include:

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Employment Tribunal Fees – Employers, Take Note

Last month it was announced that the imposition of employment tribunal fees was unlawful – great news for employees, but what does this mean for employers?

Employment tribunal fees were first introduced in the summer of 2013; a ‘Type A’ claim (i.e. unlawful deduction from wages) had originally incurred an issue fee of £160.00 with a hearing fee of £230.00.  For a ‘Type B’ claim (i.e. discrimination or unfair dismissal), the issue fee was £250.00 with a hearing fee of £950.00.

With fees being abolished, the UK is likely to see an increase in claims; it is expected that the figure will be between 60% and 80% based on the reduction in claims which followed employment tribunal fees being introduced initially.

We are also likely to witness workers who were not able to bring a claim initially, or that their case was dismissed by the employment tribunal for non-payment of the fee, seek for their claims to be reheard. The employment tribunal has confirmed that it will determine each application on its own merit.

With the above factors in mind, the government may take steps to put in place a fee structure which is more proportionate, although this remains to be seen given the government’s slim working majority.

Should employers change tactics?

Employers would often only consider settlement of a potential matter if the claimant essentially put their money where their mouth was and issued a claim. This can no longer be the case.

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Government Names and Shames NMW Dodgers

The Government has published its latest ‘name and shame’ list of 230 employers which failed to comply with the rules on the National Minimum Wage/National Living Wage.

The Government has published its latest ‘name and shame’ list of 230 employers which have not complied with the rules on the National Minimum Wage/National Living Wage.

It is estimated that companies will have to pay to their workers a record £2million in compensation claims, with up to 13,000 employees in line to receive some form of monetary reimbursement. One of the worst offenders on the list was the retailer Argos, who admitted in February they failed to pay the sum of 37,000 staff an average of £64 each.

The current rate for the National Living Wage is £7.50 per hour.  The adult rate for National Minimum Wage is £7.05 for those aged between 21 and 24.


How to ensure the correct NMW calculation

Employers should make sure that all workers are receiving the National Minimum Wage/National Living Wage by doing the following:

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Employment Tribunal Fees to be Scrapped

The Supreme Court has announced that the imposition of employment tribunal fees is unlawful; our employment solicitor Alex Pearce explains.

The judgment by the Supreme Court overturned rulings in both the High Court and the Court of Appeal. Employment tribunal fees were first introduced in 2013 by the then coalition government. The issue fee for a ‘Type A’ claim, (for example, unlawful deductions from wages), was £160 with a hearing fee of £230.  The issue fee for a ‘Type B’ claim (unfair dismissal or discrimination), was £250 with a hearing fee of £950. This led to various calls that the introduction of employment tribunal fees was a barrier to access to justice for many across the UK.

Statistics showed that the sudden arrival of tribunal fees resulted in the number of employment claims being issued falling by between 60% and 80%. It remains to be seen how employers will react to the removal of employment fees, although some employers have in the past commented that they too thought the level of employment tribunal fees prohibited employees from bringing claims and ultimately prevented access to justice.

It is also worthy to note that the Supreme Court confirmed that it was indirectly discriminatory to charge higher fees for a Type B claims (which ironically enough includes discrimination claims) than Type A claims.

It is understood that employment tribunals are now refusing to take payment if an ET1 is presented in person at one of the tribunals and that whilst the ET1 form online still requires a payment of a fee, this is in the process of being amended.

The Supreme Court does, however, recognise the important role that employment tribunal fees can play, but agrees that there needs to be a balance.  Those that have already paid employment tribunal fees are to receive a refund, which is expected to cost in the region of £32million.

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The Taylor Review – Changing the Face of Employment

The Taylor Review was published on 11 July 2017 and considers how employment practices need to alter in order to keep in line with modern business models.

The review identifies seven steps towards fair and decent work with realistic scope for development and fulfilment and includes proposals for clarifying the law governing employment status and adjusting the scope of various employment protections.

A link to the full report can be found here.    

One of the report’s key recommendations is that workers for firms such as Uber and Deliveroo should be classified as dependent contractors and receive extra benefits not normally witnessed as a self-employed individual. However, it does highlight that the distinction between ‘employees’ and ‘workers’ should stay. Further to this, the review states that there should be a clear distinction made between dependent contractors and those who are legitimately self-employed, as the regulations on this currently aren’t always entirely clear and can lead to substantive disputes.

Historically, there have been three categories of employment status:

·         Employee

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The School Holidays – An Employer’s Nightmare

The summer holidays are finally upon us, but it’s not just the parents who struggle with the stress of this time of year – it is also an employer’s nightmare.

The summer holidays can be a busy and popular time for annual leave requests; employers are trying to keep the business running efficiently and employees are doing their best to juggle childcare with work, school holidays and other commitments.  Trying to balance everyone’s needs is a tricky task, to say the least.

Employers may struggle to agree upon and approve all annual leave requests, and, as an employer, you may find that your staff members may not have enough annual leave to cope with childcare. 

As an employer, how do you deal with such requests? And, with modern technology now forming part of our daily lives, are there other options such as flexible working or working from home that can be brought to the table as possibilities?

Many working parents are unaware of another option available to them – parental leave.

Parental Leave

Parental leave is a form of statutory unpaid leave available to working parents; it can be flexible in terms of the time at which it is taken and the way in which it may be split up into shortened periods.

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Blowing The Whistle – The Rights Of Whistleblowers

Blowing The Whistle – The Rights Of Whistleblowers
After a key case was brought to the Court of Appeal recently, we delve deeper into what exactly whistleblowing is and the rights of those who ‘blow the whistle’.

In June 2013, whistleblowing laws were altered so that a worker must have reasonable belief that he or she was blowing the whistle ‘in the public interest’ in order to be protected. This led to the case of Chesterton Global Ltd (t/a Chesterton Humberts) and another v Nurmohamed being brought to the Court of Appeal.

Mr Nurmohamed, a manager within a large estate agent, raised concerns about a new commission structure that had recently been implemented in the workplace. He argued that the inconsistencies he found within the new structure were deliberate and that the accounts were being manipulated by management to the benefit of shareholders. As a result of this, management dismissed Mr Nurmohamed.

He raised an unfair dismissal claim in the employment tribunal, citing that the dismissal was automatically unfair because he had made a protected disclosure and was penalised for doing so. Both the employment tribunal and EAT accepted that he reasonably believed that the disclosure was ‘in the public interest’ due to the fact that the 100 or so managers of the estate agent were also affected by the issue with the commission structure.

There is no doubt that more of these kinds of cases will be brought to the Court of Appeal in the near future; but what exactly is a whistleblower, and what rights do they have from the outset?

What is a whistleblower?

A whistleblower is an employee of a business who reports certain types of wrongdoing in the workplace, such as engaging in an unlawful conduct or the suppression of information which may lead to breaches of the law or the endangerment of others. Importantly, the report about wrongdoing has to amount to what the law would regard as a “Qualifying Disclosure”.

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Sexual Harassment in The Workplace – An Uber Mistake?

After Uber fires employees as a result of sexual harassment claims, we take a look at the legal aspects of these kinds of cases and how to deal with them.

You will have no doubt witnessed in the news earlier this month that Uber dismissed more than 20 employees after sexual harassment claims led to a company-wide investigation.

One of the complaints was by a female engineer who complained that her manager propositioned her for sex when she joined and that a director had stated ‘the women of Uber just need to step up and be better engineers’ when explaining the low numbers of female employees in the company.

It is believed that some senior executives were among the 20+ employees who were dismissed.

Legal protection for employees

The Equality Act 2010 prohibits harassment related to sex and sexual harassment. Harassment related to sex occurs where:

  • A engages in unwanted conduct relating to sex; and
  • The conduct has the purpose or effect of either violating B’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

In deciding whether conduct has the effect referred to above, each of the following must be taken into account:

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What WILL The Election Mean For Employment Law?

With the general election just over 2 weeks away, we have a brief look at the three main parties’ manifestos with regards to how they might impact employment law.



  • National Living Wage to be increased to 60% of median earnings by 2020
  • Ensure people working in the 'gig' economy are properly protected
  • Listed companies to be requirement by law to nominate a director from the workforce
  • Introduce a right for employees to request information relating to the future direction of the company.



  • To end zero-hours contracts
  • Introduce four extra public holidays each year
  • Those in the public sector, maximum pay ratios of 20:1
  • Increase in minimum wage to at least £10 per hour by 2020
  • A ban on unpaid internships
  • Extend rights of employees to all workers
  • A guaranteed right for trade unions access to workplaces
  • End the public sector pay cap
  • Repeal the Trade Union Act
  • Enforce all workers' rights to trade union representation at work
  • Abolish employment tribunal fees
  • To provide all workers equal rights from day one, whether part-time or full-time, temporary or permanent
  • A presumption that a worker is an employee unless the employer can prove otherwise.


Liberal Democrats

  • An additional month's paid paternity leave
  • Stamp out abuse of zero-hours contracts
  • Encourage employers to promote employee ownership
  • 40% of board members being women in FTSE 350 companies.


Whoever wins the general election, it is clear that employment matters will continue to be a fast-paced and evolving area of law. The legal world can be a complicated place and disputes with employees can take up valuable management time and resources. They can prove expensive to resolve, and early advice is always the key. 

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Care Worker Pay Woes After Minimum Wage Ruling

It has been ruled that care workers who are required to sleep in a client’s home are entitled to be paid the national minimum wage for all hours worked – including hours spent asleep.

The decision, made by the employment appeal tribunal will have significant consequences for the social care industry, as the costs of providing staff to clients will increase massively and there may be claims for backdating pay. Care agencies that refuse to pay up as part of the new ruling could see penalties and fines assigned to them over the next 12 months for failure to provide the NMW.

In the case that brought this issue to light, the care worker was employed by the charity Mencap to sleep at a client’s home in order to be readily available for them if required. She was paid a flat rate of £29.05 for the nine hours she was on shift during the night and received £6.70 an hour during daylight working hours. It is stated as part of the NMW regulations that all workers must receive national minimum wage as an average for ALL hours worked. The employment tribunal ruled that the care worker was indeed entitled to be paid an amount equivalent to national minimum wage for the whole period that she was at work – including the periods in which she was asleep.

From a legal perspective, regulations surrounding NMW and care staff are far from clear; the judge in this specific case commented that there is no deciding factor in these cases, and employers will need to look at several issues regarding national minimum wage for their staff to determine if their pay structure may be considered unlawful.

If you are an employer at a care agency and are looking for advice on where you stand regarding NMW and your staff members, it is advised to seek expert legal advice in the first instance.


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