New role for Mohammed

We have a new face in our commercial team - Mohammed Ahsan who has spent the last three years working in our Personal Injury Department.

Now, he’s been promoted to a new role to handle a wide variety of dispute resolution issues.

Mohammed completed his law degree at Wolverhampton University, and joined Martin-Kaye Solicitors in 2002, initially as a legal assistant. He was instrumental in helping to set up the firm’s Housing Disrepair team, and once his training was completed, he qualified as a solicitor in 2005.

In his new role, Mohammed will deal with all kinds of disputes including: computer and IT issues; construction and building disputes; contracts; copyright and design; and debt collection, distribution and agency disputes.

“I’ll also be working on insolvency cases, franchise agreements, and emergency injunctions, so there are many areas where I’ll be able to use and develop my existing skills.”

Pic: Martin-Kaye’s Mohammed Ahsan who takes up a new role in the Commercial Team

Protect your secrets carefully

Can company bosses prevent a member of staff from taking “confidential” information with them when they resign? Not necessarily, says John Mehtam, our Employment Law Specialist.

“Information which you may regard as being classified, is often in the public domain, and if that turns out to be the case, there may be nothing you can do to stop former members of staff taking the information with them.

“As a general rule, in order for something to be confidential and owned exclusively by the company, it either has to be a trade secret, or something that you’ve been given in confidence which isn’t public knowledge.

“But even this isn’t a cast-iron guarantee, since the courts have recognised that all employees accumulate a certain amount of knowledge about the company which they’re entitled to take with them and use in their next job.”

John said there were a number of steps which companies could take to protect themselves.

“If you want something to remain confidential, make sure it’s clearly marked as such, and that its importance is flagged up with any employee who has access to it. Also, make sure that the contracts of senior employees and directors include restrictive covenants spelling out the position regarding the use of sensitive data.”

Take care with charity events

Shropshire companies planning out-of-office fundraising events are being urged to make sure they don’t fall foul of the law.

“Even though it’s a non-business activity carried out in non-business time, both employment and health and safety legislation will apply,” said Graham Davies, our Senior Partner.

“This means that the company is under an obligation to take reasonable care of any employees who are going to participate, including directors. And if one of your employees causes an accident which results in someone else getting hurt, then the company will be held liable.”

Graham urged Shropshire companies to weigh up the risks of any planned activities, such as sponsored walks, bike rides or other activity-based fundraisers, against the potential benefits.

Companies should also ensure that their insurance policies covered non-work activities, or take out additional cover for specific events.

“Something else the company must do in order to avoid potential problems is to check out any equipment staff may plan to use, to ensure it complies with the Health and Safety at Work Act.

“Although this might seem like overkill, both the company and its directors can’t be too careful when it comes to the health and safety of its employees. Directors can be sued personally if their negligence has caused an injury.”

Chris takes first award

We've launched our very own award to recognise staff commitment and dedication.

The Employee of the Quarter Award has been introduced as a “thank you” to employees who go the extra mile. And the first winner is Chris Mills, our Assistant Systems Manager who joined the company in 2005.

Managing Partner, Andrew Green, said: “We felt it was important to recognise staff who really stand out, and Chris is a prime example of the very best kind of employee that we have here at Martin-Kaye."

To mark his award, Chris received £100 worth of Debenhams vouchers, an extra day’s holiday, and an engraved paperweight.

Pic: Managing Partner Andrew Green (left) presents the Employee of the Quarter Award to Chris Mills

Have you been left out?

Arguments over the will after the death of a loved one are on the increase, and we are tackling the issue by launching a new website designed to help people who feel they have missed out.

We've launched www.contest-a-will.com and have already been inundated with enquiries from all over the UK.

Chris Detheridge, from our Commercial Team, said: “The number of disputes over wills is partly due to the framework of today’s modern family – there are more second marriages, more step children and more same sex relationships than ever before. And the complicated structure of our lives can often lead to people feeling they have not received everything they were entitled to, once a loved one dies.”

Chris said after an increased level of enquiries about the possibility of contesting wills, the team decided to research the market further.

“And our research showed there was a real growth in this area of business, so we acquired the domain name – contest-a-will.com – and created the service and website.”

There are strict time limits for claims to be dealt with, so anyone who feels they have not received their fair share of an estate must seek professional advice at the very earliest opportunity.

Pic: Mohammed Ahsan and Chris Detheridge, from the Dispute Resolution Team, launch the contest-a-will website

Parking ticket paper chase

Parking fines issued by private landowners in Shropshire may not be worth the paper they are written on, a county solicitor has warned.

Graham Davies, our Senior Partner, said strict new regulations made it almost impossible to force drivers to pay.

“It is a myth to claim that if you park on private land, there’s nothing the owner can do about it. It is in fact perfectly legal to charge someone for parking on private premises. But if a driver rips up the ticket and refuses to pay, it’s not always easy for the landowner to do anything about it.”

“Private landowners can issue tickets, provided drivers are made sufficiently clear of the risks of not paying. But the good news for the drivers of the vehicles is that, unless landowners are members of an accredited trade association, the DVLA won’t release your personal details, so it should be safe to ignore.”

Graham said: “Even if signage on the land appears to prove your guilt, the landowner will have big problems taking things any further if they can’t gain access to your personal details."

And he said it was difficult for a private landowner to meet the standards required, since they had to maintain sufficient liability insurance, and follow strict ticketing guidelines.

“If you receive a ticket, contact the DVLA to see if they have the authority to reveal your details. If they haven’t, ignore the ticket . . . there’s nothing more that can be done.”

Don't sign your life away

Debt collection agencies have fresh powers to take action against directors for their company’s unpaid bills. That's the warning from Chris Detheridge, from our Commercial Team, who said it was no longer safe to assume that a director was immune from being personally liable.

He highlighted a Court of Appeal case last year which found that directors can be held personally responsible for a debt, if it can be proved they entered into a contract knowing the company could not pay its way.

“This case makes it clear that it’s very dangerous for you to sign something, whether it's a lease or a contract, when you either don’t believe that the company can honour its obligations or you don’t actually know.

“As a director, if you allow this to take place, or even if you turn a blind eye to it, you can become personally liable for the company’s debts.”

He said debt collection agencies were on particularly strong ground if the company’s paperwork was lacking. “You must ensure that the company’s full details appear on all letters, cheques, order forms, website and in any electronic communication.

“If this doesn’t happen, then the directors can become personally liable for any contracts. That’s the dangerous side – but the flipside is that if one of your debtors hasn’t played it by the book, their case is weakened too.”

Chris said debt collection agencies now had the law on their side in an increasing number of instances.

“Always make sure you exercise caution whenever you enter into an obligation on behalf of the company, and don’t lay it on too thick in order to clinch the deal. If you get it wrong, its impact on you, personally, could be serious, and very costly.”

Don't assume you're off the hook

Directors could find themselves personally liable if there’s an issue over their company’s rented premises.

Sarah Heath, our Commercial Property Specialist, said directors must be aware that just because they rented their business premises, they were not safe from any problems that may arise.

“You may have assumed that as you rent the premises, if there are any issues that come up with the landlord, then they’d be the company’s problem. But even though the lease will probably be in the company’s name, as a director you cannot sit back and assume you have no responsibilities.

“As part of the tenancy agreement, you may have given a personal guarantee to the landlord, and this is the reason you should be careful. This means that if there are any difficulties with the lease, including unpaid rent, or a failure to complete agreed repairs, your landlord can pursue you personally for the money.”

Sarah said if, as a director, you had given a personal guarantee, the best approach was to try to resolve any issues through negotiation with your landlord.

“The chances are that you will probably have a full repairing lease – this means the company has to ensure the whole of the premises are maintained and repaired, not the landlord. And if anyone has an accident as a result of the state and condition of the premises, they could look to the company for compensation.

“But if the accident was as a result of a health and safety issue, directors could find themselves personally facing a prosecution.”

Sarah said companies should ensure at least one member of the board was responsible for health and safety issues. They should also look after the company’s obligations in terms of the repair and maintenance of the property.

“And don’t neglect your responsibilities under the Control of Asbestos at Work Regulations 2002 either, as you may once again face personal prosecution if you don’t manage the risks properly.”

Who's looking after you?

Company directors are well aware of their responsibilities when it comes to health and safety issues in the workplace - but may be ignoring the risks they face themselves.

Our Employment Law Specialist, John Mehtam, said: “Directors of small and medium-sized companies all over the UK are subjecting themselves to health risks from the stressful situations they face every day.

“With the constant stream of changing legislation, and the increasing pressures from the troubled economy, it’s no wonder that directors are finding things difficult. In fact, research has shown that 40 per cent of owner/managers and directors of SMEs are working over the EU maximum limit of 48 hours a week."

John said the Working Time Directive limited the amount of hours people should work during a typical week, with staff required to sign an opt-out form if they were likely to exceed the 48-hour limit.

“But who is keeping an eye on the directors’ hours? And you may even find that working excessive hours is actually counter-productive – are you really working as efficiently as you could be?”

John said owner/managers and directors should take a step back, and start to consider their own working conditions.

“Start by getting a comprehensive medical, paid for by the company. This will not only be tax deductible, which is obviously welcome news, but it will also give you a clear picture of the state of your health. If the results show you are damaging your health, then you’re also damaging the health of your business, so take action as soon as you can.”

Are you breaking the law?

Your company could be breaking the law when it comes to selling over the Internet.

Graham Davies, from our Commercial Team, said research had shown that up to two thirds of companies selling online could be breaching the rules. The websites were checked in relation to the Consumer Protection (Distance Selling) Regulations 2000 and the Electronic Commerce (EC Directive) Regulations 2002.

“The vast majority of the websites surveyed appeared to impose conditions that deterred customers from using their cancellation rights, and 15 per cent did not point out to customers that they had the right to cancel an order within seven days. And another 31 per cent failed to refund the full cost if an item was returned.”

Graham said it was vital for companies to include details of their cancellation and refunds procedure on their website. “Include this information in a terms and conditions section, and to protect your company still further, make sure customers can’t proceed to the checkout until they’ve accepted these terms.

“Make sure you clearly spell out your pricing structure, particularly when it comes to any additional charges that may be incurred, and do this well before the customer gets to the payment stage of the site.”

Graham said many companies also failed to include a full physical contact address on their website, as well as an email address (not just a web form) so customers could contact the supplier.

“The Companies Act 2006 says not only must you include your full physical address, but also your company number and where the company is registered on all your literature, which includes your website.

“If you consistently fail to include clear information on cancellation rights, refunds and extra charges in the main body of your website, you could face legal action – so take steps to protect your company and your customers.”

Staff lay-offs on the increase

Staff lay-offs may seem like a relic of the 1970s and 80s, but in today’s tough business world, they could be set for a comeback. It's already clear that 2008 is proving to be an extremely difficult year for local companies, and our Employment Law Specialist, John Mehtam, said businesses should beware.

“Many businesses are in the unenviable position of looking for cost savings, and the payroll may seem like the most obvious place to start. So do you have to make people redundant, or can you simply lay-off your staff until things improve?”

John said a redundancy was a permanent solution to the problem, where the need for the work the employee was doing has ended, and an easier option may be to lay off several members of staff, which was a more temporary move.

Another option is to ask your staff to work fewer hours in a week than usual, and then they're considered to be on short time. “But of course it’s not that simple, because you can only lay someone off or put them on short time working if you have the right to do so in their employment contract.

“Even if you don’t have the contractual right to lay anyone off, it may be worth asking your staff to agree to it. You could explain that if they’re laid off for a few days, you’re far more likely to be able to keep them on in the longer term.

“This can be a risky strategy though, and you must make sure you get the employee’s written consent. These are short-term measures, but they could help to ease your company through the difficult times.”

Take asbestos seriously

Shropshire companies are being warned to take the threat of asbestos seriously on their premises, after the number of prosecutions under the Control of Asbestos at Work Regulations more than tripled last year.

Chris Detheridge, from our Commercial Team, said: "The regulations apply to just about every business, not just factories that manufacture asbestos, and the Health and Safety Executive is now taking a tough approach to any breach in the rules.”

“Start by taking reasonable steps to find out if there’s asbestos in the building, and if so, how much, where it is, and what state it’s in. You should also make and keep up-to-date a record of the position and condition of the asbestos, and carry out a risk assessment.

“Prepare a plan on how to handle any risks, and put it into action. Regularly review and monitor the plan, and make sure anyone who’s likely to work near the asbestos or disturb it is fully informed of its location and condition.”

“Directors could also find themselves personally liable for any breach under the Health and Safety at Work Act 1974, which could mean a prosecution and a difficult court case.”

Companies need to ask a qualified asbestos surveyor to carry out an inspection, and if it’s found on the premises, a licensed contractor must take it away.

Second job risk for staff

Staff who take on a second job to earn extra cash could be putting your business at risk.

John Mehtam, our Employment Law Specialist, said employers must be vigilant in order to maintain safety standards in the workplace.

“The tell-tale signs are that perhaps the employee is looking tired and failing to perform as well as usual during the working day. This is particularly serious if your staff are operating heavy machinery as you need to protect your other employees.”

John said once an employer was certain that a member of staff had a second job, action must be taken, because otherwise the employer could be held liable if an accident did happen.

“If you don't have guidelines in place, take a view on what you want your policy to say. Many employers do allow second jobs, as long as staff ask permission first, and as long as they’re not working for a competitor.”

Under the Working Time Regulations, staff cannot work for more than 48 hours per week unless they’ve signed an opt-out agreement, so a second job could have a serious impact on the number of hours they’re clocking up.

“If you suspect someone is working for another company, it’s vital that you get them to sign an opt-out or as their employer, you could be breaking the law.”

Treat health and safety with care

Company directors must make sure they understand health and safety rules, or face tough consequences.

Stuart Haynes, from our Commercial Team, said every director should have a “working knowledge” of their company’s health and safety provision.

“You should know where the risk assessments are kept, and you should have read and understood the ones that are most relevant to your line of business. For instance, if you deal with chemicals, obviously you should know how the principal risks are managed.”

If your directors don't know where the risk assessments are kept, or if their knowledge is patchy, any visit from a health and safety inspector could prove extremely uncomfortable. Getting to grips with the information should not just be a one-off effort either, as health and safety legislation is constantly changing.

“One option is to add health and safety to the agenda of your board or management meetings, though it should probably already be on there anyway. You could also nominate one person to send out regular reports – by email would be fine – to the directors and relevant managers.

“Try to keep the directors’ report to a single sheet of A4, and avoid using jargon or abbreviations to avoid any confusion. You should also include details of anything that has, or is likely to, cost your business money such as potential claims, accidents, or contact from insurance companies.

“And include any legal or procedural changes – if you’ve updated a risk assessment, attach a copy of the latest version, highlighting the new sections.”

And there's more...

They're back! By popular demand! We're launching a second series of our ground-breaking advice forums in Shrewsbury.

We initially ran interactive HR and Employment Law in Practice (HELP) forums in Telford, and businesses in Shrewsbury were so impressed that they asked for their own programme of events.

Now, after an unprecedented response from local companies, we are launching a second series of seminars in the county town, beginning on Tuesday, April 22, at The Lord Hill Hotel, in Shrewsbury.

The format will be as before, in conjunction with the Royal Bank of Scotland, but the meetings will now take place quarterly.

It really is very rare for events like this to prove so popular with local businesses, and with an average of 40 businesses attending each session, the feedback questionnaires showed an overwhelming demand for more. So now we’re back with a whole new range of topics, many of which have been specifically requested by our delegates.

The aim of the events is to keep employers up-to-date with current law and regulations, and to help them find the answers to tricky employment issues.

The forum, which runs from 8am to 10am, also provides employers and HR professionals with an opportunity to exchange ideas and to discuss trends. At each event, delegates receive a presentation dealing with the latest employment issues together with practical examples, followed by a question and answer session.

For companies who are struggling to find their way through the complicated minefield of Employment Law, and anyone who is finding it difficult to keep up with the ever-changing rules and regulations, these forums are a huge opportunity.

Why not ask us for more details of how to get involved? Places are limited so you'll need to act quickly!

Go the extra mile

Shropshire employers must take more notice of staff mileage claims to avoid tax difficulties.

Our Employment Law Specialist, John Mehtam, said with such a busy working environment, employers may be tempted to sign the claims without checking them too thoroughly.

“But this is a risky strategy, and could lead to really serious consequences in terms of tax if you don’t follow the rules. Check that the mileage your staff are claiming for is allowable – this covers travel to business meetings, conferences and temporary places of work. But any travel with a personal element, including travel to and from work, will not qualify."

John said the Taxman had approved mileage allowances for employees using their own vehicles for business travel – the flat rate for cars is 40p per mile for the first 10,000 miles in a tax year, and 25p per mile after that. There are separate rates for company vehicles and motorcycles.

All claims should be in writing including records of each journey and its purpose, such as client/supplier name, start point, destination, date and miles travelled.

“If you don’t follow the rules, the employee will be required to pay tax on any excess mileage payments. And the Taxman will assess your company on the sum total of the overpayments too, so you will be charged interest as well. Any false mileage claims will require the staff involved to pay tax on any excess, and this would also be a disciplinary matter."

Beware of the blog

Bosses must beware of the risks of using internet blogs to promote their company - that's the message from our Employment Law Specialist, John Mehtam.

Corporate blogs can be invaluable in helping to increase publicity, but there are risks and pitfalls with this type of approach, and it's important that employers understand what they're letting themselves in for.

"You need to consider carefully who will write the blog - are you, as a director, going to take it on, or are you going to let your staff have their say?

"If you're writing it yourself, you must be honest, because if you oversell your business, the blog could backfire. The same goes for your employees, so beware of giving them the opportunity to say what they like or you could face serious problems."

John said if you did let your staff loose on the blog, it was vital to make sure they didn't use it to harass each other online, as all employers had a duty of care to protect their employees against bullying in the workplace.

"You should also monitor the blog carefully to make sure the employees don't say anything derogatory about your competitors, or you could face a libel case and as a director, you will be held personally liable.

"Making the most of the latest technology to promote your business is an excellent idea, but you need to take care to avoid the pitfalls such an opportunity creates."

Switch it off for energy savings

Shropshire companies could cut their energy costs by up to 90 per cent if they simply switch off their office equipment.

Our Senior Partner Graham Davies said companies must consider their energy policies if they were to make a real difference to their energy bills. "Office equipment accounts for around 20% of a company’s total energy consumption, but in today’s challenging economy, there are ways to cut costs."

Like most companies, we are committed to reducing the impact our business has on the environment, and to making sure we are not incurring unnecessary costs.

"Our research has shown that the most basic way to save money is to turn off our office equipment, because in commercial offices like ours, this makes up nearly a quarter of the total energy bill. The energy consumed by computers and laser printers can be reduced by 75% per year if they are switched off at night, at weekends and during holidays."

Graham said if computer monitors were also switched off when they were not in use, and utilised the standby mode, a company could even cut its energy consumption by 90% each year.

"The guidelines also show that the costs increase by about eight per cent for every degree the temperature of your workplace rises, so it’s important to try to keep the office thermostat at a constant level. We try to keep doors and windows closed and free from draughts, and suggest our staff turn the heating down rather than opening windows if it gets too hot. And if our workplace is empty at weekends or over the holidays, we reduce the heating to a minimum or even turn it off altogether.

"We encourage employees to think about the energy that is being used in all areas of our business, and we closely monitor our fuel bills so that we can share with our staff the difference their efforts are making."

Offer employees a fresh start

Shropshire employers facing a round of tough redundancies should consider offering staff alternative jobs instead.
John Mehtam, our Employment Law Specialist, said an alternative position may be the answer companies were looking for.

"In today’s increasingly competitive marketplace, some employers may well find they face tough decisions, with the harsh reality being that they have no option but to make some of their workers redundant. But have you considered all the options – could you minimise the impact of your difficult position by finding alternative roles for those staff within your organisation instead?"

John said though that this approach may seem to be the perfect solution, but employers needed to make sure they stayed on the right side of the Employment Rights Act 1996 when it came to managing the process.

"The Employment Appeal Tribunal has also set out new guidelines to explain how you should manage the offer of an alternative job and there are definitely pitfalls you need to avoid."

He said employers should offer the person a trial period in the new potential job, usually four weeks. "Communicate clearly to the employees involved how the trial period for an alternative job will operate, right from the start. Ensure they know that if they want to turn down the new job, they must do it within the four week period, otherwise they could forfeit their right to a statutory redundancy payment.

"Make sure too that any proposed alternative employment is actually suitable for the employee. Offering them a job which you know will be beyond their skills or totally out of their remit could put you at risk of an unfair dismissal claim."

There's more to it than you think...

Converting an existing business to a limited company may not be as simple as it sounds - that's the message from Stuart Haynes in our Commercial Team.

"There’s more to it than just adding the word ‘limited’ to your letterheads. Under The Companies Act 1985, every company must display its name outside any premises it trades from. And it must also have the full company name on all letterheads, notices, cheques and orders, together with its place of registration, its company registration number and its registered office.

"And new rules introduced in January 2007 mean this criteria now applies to websites, emails and promotional material too."

Stuart said it was vital for all limited companies to check their literature before using it, or face tough consequences.
"Not only is it a criminal offence to get the details wrong, and your directors could be fined, but if the limited company name is incorrect on cheques and company orders, the directors can also be held personally liable to honour them.

"As the limited company will be seen as a new organisation, you are also likely to need your landlord’s consent before you can continue operating from your existing premises and trade officially under the new name. This should be a formality, but you can’t ignore the rules, as you could otherwise be in breach of covenant and lose the lease altogether.

"And as it’s a new company (even though the business has been around for some time), the landlord will probably want your directors to personally guarantee the lease – he may even want a rent deposit paid in advance."

Stuart said suppliers and customers may well not even notice the difference in your status, but officially you need their consent for your new company to take over existing contracts.

"To solve this issue, send them a copy of an existing contract attached to an agreement that confirms the new company will take over the responsibility for any obligations featured in the original contract."