Friday, 15 January 2010

Phones warning for bosses

Shropshire staff who are caught using a hand-held mobile phone while driving could cause trouble for their employer too. Tina Chander, from our Employment Law Team, said company bosses should set out strict rules on the use of mobile phones and other gadgets.

“Regulations prohibit drivers from using any hand-held mobile phone or similar device while driving, including while a vehicle is stationary in traffic. But you could also find that in theory, as a company director, you could be held responsible if you allow an employee to use a mobile phone while they’re at the wheel on company business.

“This could lead to a fine and/or penalty points on your own licence as a result, although the situation has not yet been tested in the courts.” Tina said this was because the regulations also make it an offence to “cause or permit” a driver to use their phone.

“Simply providing your employees with a hands-free kit and telling them to use it would probably not be enough to avoid the problem. Unless it has been set up for full voice activation, it will probably still be classed as a hand-held device.”

She said that if staff did not have access to such equipment, companies must make it clear that they must not use any hand-held devices while driving – and a mobile phone and gadget policy should be drawn up.

“Suggest your staff let their mobile divert to answerphone while they are travelling and that they return the calls later. And make sure your own officer workers never phone colleagues when they know they will be driving. It’s better for anyone who is on the road to phone the office between journeys to check for any messages.”

Tina said the rules not only covered sending or receiving mobile phone calls, but also text messages, access to the internet or email, and even checking images on a satellite navigation system.

Thursday, 14 January 2010

What's in a name?

Phoenix companies rising from the ashes of firms which have gone bust are on the increase in today’s tough economic climate. But our Senior Partner, Graham Davies, said starting again may not be so simple.

“Given the recession, there’s been a real increase in the number of companies who go bust one day and then reappear the next, carrying on with the same business and directors. There’s no problem with this as long as you stay within the rules, but the law is tough on anyone who fails to follow the procedures correctly.”

Graham said it was a criminal and civil offence for a director of an insolvent company to reuse its name, or something similar to the same name, within five years. “This rule applies to anyone who was a director of the company during the 12 months prior to it failing. Usually only the civil action will be taken, but this in itself can still bring tough financial penalties.”

In a civil action, a director could face an unlimited fine and be held personally liable for all the relevant debts of the company that traded under the prohibited name.

“But subject to conditions, a director may legitimately be able to reuse the company name,” said Graham. “You can only do this if you have permission from the court; if the successor company has been trading under the prohibited name for 12 months before the old company goes into liquidation; or if the new company acquires all or most of the business of the failed company from a liquidator.

“The best advice would be that if you’re a director of a company that’s gone into liquidation and you want to use a similar name for your new venture, ask the liquidator of the original company for guidance. It’s understandable that you may want to start a new business as soon as possible, but starting a phoenix company certainly isn’t plan sailing, and you must proceed with caution.”