Business Law

We are delighted to announce that the firm has been shortlisted in the South Holland Business Awards 2016 for the Business of the Year Award, and that our Apprentice Jacques Ripley has also been shortlisted for the Apprentice of the Year Award.  The firm is thrilled by this and many of our Partners and staff (including Jacques) will be at the Springfields Centre on the evening of the 24th November waiting with baited breath the announcement of the winners in these categories.

We will keep you posted as to the outcome and look forward to seeing many of our clients, suppliers and associates at the awards night.

The firm has a fantastic tradition in the South Holland Business Awards.  In 2013, at the inaugural awards, the firm won the Customer Care Award.  In 2014 the firm was commended in the Support in the Community Award.

The Bribery Act 2010 came into force on 1st July 2011. It principally created 4 new offences as follows:-

1. Paying a bribe

It is an offence to offer, promise or give a financial or other advantage for the purpose of bringing an improper performance of a function or activity.

2. Receiving a bribe

It is also an offence to request, agree to or receive a financial or other advantage for the purpose of bringing about an improper performance of a function or activity or to request, agree to or receive a reward for having done so.

3. Bribing a foreign public official

It is an offence to offer, promise or give a financial or other advantage to a foreign public official where such advantage is not permitted under the written law applicable to that foreign official, and it is done with the intention that this would influence the foreign official in the performance of his duties as a public official and must intend to secure business or to obtain a business advantage.

4. The corporate offence of failing to prevent bribery

A business commits an offence if a person associated with it bribes another person with an intention of obtaining or retaining either business or a business advantage for that organisation.

It is a defence if the business can show that they have put in place “adequate procedures” to prevent bribery.

First Prosecution

In November 2011 the first prosecution under the Bribery Act 2010 took place when a Court Clerk (Munir Yakub Patel) was jailed for three years for bribery. He admitted receiving £500 in exchange for “getting rid” of the details of a traffic summons.

The sentence clearly showed the intention of the act to be a powerful deterrent to bribery, for both individuals and businesses.

In July 2012 a report by Ernst & Young suggested businesses may have been getting complacent about the risks of prosecution under the Bribery Act as no corporate prosecution had commenced. However the Serious Fraud Office in October 2012 made an announcement that it was radically changing its guidance on prosecution, suggesting that it would be more inclined to bring prosecutions against businesses than previously had been the case. Hence we believe that it is essential that you have proper procedures against bribery in place now, especially as for example corporate hospitality could amount to a bribe unless it has a legitimate business aim, is reasonable, proportionate and appropriate in the circumstances.

What does your business need to do to avoid the risk of a prosecution?

If your business does not have “adequate procedures” in place, then it faces the risk of unlimited fines if it fails to prevent bribery. What will be considered as adequate will depend upon what is proportionate given the facts and circumstances of the business and the bribery risks that it faces.

At Maples we can advise you on how to ensure that your existing procedures (if any) can be adjusted (if required) to maintain a statutory defence for your business against bribery, or if you have no procedures we can draft a procedure that is bespoke to your business.

Daven Naghen, part of our Litigation Team, says “It is absolutely essential for every business, no matter how small or large or whatever its line of business, to have an anti-bribery procedure in place and then not only follow it but monitor and review it regularly to ensure that the business does not end up facing untold damage to its reputation and an unlimited fine causing financial ruin.

We can sort out your procedures and advise you as to implementation, monitoring and review in such a manner that is most suitable to your business.”

If you require guidance on the Bribery Act 2010 then please contact Daven on 01775 722261 or email daven.naghen@maplessolicitors.com or write to Daven at 23 New Road, Spalding, Lincolnshire PE11 1DH.

Introduction

Legislation has come into effect from the 1st October 2015 which is designed to encourage the use of ADR to resolve consumer disputes. Although the new legislation does not impose any form of mandatory ADR, it does extend the obligations on businesses to provide consumers with information about ADR options.

To whom do the regulations apply to?

The regulations apply to all businesses in the United Kingdom selling goods, services or digital content to consumers with the exception of health professionals.  The regulations do not apply to business to business nor to consumer to consumer transactions.  For the purposes of these regulations a consumer is in “an individual acting for purposes which are wholly or mainly outside that individual’s trade, business, craft or profession.”

Public sector providers of services are outside the scope of the regulations unless the consumer is paying the public sector provider directly for those services.

Contracts for sale of property are also outside the scope of the regulations.

The requirements of the regulations

From the 1st October 2015:-

(i)         Where a business is obliged (either by law or by virtue of its membership of a trade association) to use ADR provided by a particular ADR entity, the business must provide the name and website address of that ADR entity.

(a)        On its website if it has one; and

(b)        In the general terms and conditions of sales or service contracts between it and a consumer.

(ii)         Where a business has exhausted its complaints handling procedure in respect of a consumer complaint, the business must inform the consumer on a durable medium (which can include email);

(a)        That the business cannot settle the complaint with the consumer;

(b)        That the name and website address of an ADR entity that would be competent to deal with the complaint, should the consumer wish to use ADR; and

(c)        Whether the business agrees to submit to an ADR procedure operated by that ADR Entity.  (Businesses obliged or committed to using the ADR entity will of course have to agree).

This requirement will apply to all disputes that are unresolved after the 1st October 2015, even if the contract was entered into, or the complaint first arose, before that date.

From 9th January 2016:-

All businesses that sell goods or services online must provide on their website a link to the EU’s Online Dispute Resolution (“ODR”) platform.  Online businesses who are legally obliged or committed to using ADR must also provide information about the ODR platform in their terms and conditions of business.

Daven Naghen head of our Litigation Team commented as follows:-

“Some businesses are already obliged by either law or virtue of a membership of a trade association to use ADR.  For example many travel agents through their membership of ABTA are obliged to use its ADR scheme.  In such circumstances the business must ensure that its website shows the name and website address of the ADR entity and that the details are also included in terms and conditions of business.

The more interesting provision relates to businesses that are not currently obliged by law or by virtue of a membership of a trade association to use ADR.  Quite often such businesses will have an internal complaints procedure and if that fails to bring a resolution to matters then it will be left to the consumer usually to go to Court to seek a remedy.  Now once the internal complaints procedure has been exhausted, the consumer must be given the name and address of an approved ADR entity that would be competent to deal with the dispute.  Unless the business is obliged by law or virtue of its membership of a trade association to use ADR then the business still has the option about whether or not to use that ADR entity.  The obligation merely relates to referring the consumer to the details of an approved ADR entity.

However in view of the obligation in litigation for the parties to participate in ADR it may be appropriate for the business to agree to use ADR provided by the stated ADR approved body.  Furthermore it might just resolve the dispute in a timely and cost effective way.

As I understand it many of the ADR approved bodies will be charging businesses a membership fee for being able to give their details to a consumer and then the ADR approved entity may charge another fee on a case by case basis for each matter that it deals with.

I am not sure how effective these regulations will be in terms of getting businesses to enter into ADR when they are not legally obliged or committed to doing so, but there must be something of a reasonable chance that some businesses at least will use the ADR approved entity that they at least have to notify the consumer about.  Provided the standard and quality of the ADR approved entity is good, then this cannot be a bad thing as it will hopefully reduce the number of matters that need to be litigated through the Court.”

If you are either a business or a consumer that requires advice about these new ADR regulations, or about any consumer matter then please contact Daven on 01775 722261 or email daven.nagen@maplessolicitors.com or visit our offices or arrange an appointment at our offices at 23 New Road Spalding Lincolnshire PE11 1DH.

We are extremely pleased to confirm the outcome of a very successful night at the South Holland Business Awards 2016.

Jacques Ripley was the joint winner of the Apprentice of the Year Award.  In particular this being a tremendous reward for him after all the work he has put into helping the firm with a seamless integration of a new office management computer system.

Then in respect of the major award for the evening, namely Business of the Year we came a very creditable second and received a commendation from the judges.  This follows on from previous successes for the firm with these awards, as we won the Customer Care Award in 2013 and in 2014 we were commended in the Supporting the Community Award.

A delegation from the firm, including Partners and staff were present at the evening to celebrate these successes.

Mrs Anita Toal, Managing Partner of the firm, has commented:-

“These two Awards are a great recognition for us in the local community.  As our first ever apprentice, so I believe, Jacques has made an outstanding contribution to the firm and has ably assisted the Practice Manager (Chris Ayre) in helping the firm get to grips and used to a brand new office management system.  The commendation accolade in the Business of the Year Award category just marks how well and how hard all the Partners and staff have worked this year in order to service all of our clients.  A big thank you goes to all of our members of staff for making a very valued contribution to the firm this year.  We shall endeavour to maintain our high standards during 2017!”

There is one question a lot of landlords have asked us over the years and that is “What is the Difference Between a Section 8 and Section 21 Notice?”.

The most basic difference between a section 8 and section 21 is that a section 8 notice is served when a tenant is in breach of contract (eg rent arrears), and a section 21 is served to end a tenancy agreement, simply so that the landlord can regain possession.

A section 8 notice, or notice to quit as it is also commonly known as, is so called because it operates under section 8 of the Housing Act 1988. A section 8 notice is served on the tenant by a landlord wishing to regain possession of a property during the fixed term of an Assured Shorthold Tenancy (AST) when the tenant has broken the terms of the tenancy. You can give between 2 weeks’ and 2 months’ notice depending on which terms the tenant has broken.

Once the period of notice has lapsed and the tenants have not vacated then you can apply to the court for an Order for Possession.

If you need help in completing a Section 8 Notice with the correct notice periods and/or assistance with the grounds for possession then please contact laura.day@maplessolicitors.com or daven.naghen@maplessolicitors.com and we will be happy to assist you with this.

With respect to a Section 21 notice, you can use this notice to evict your tenants either after a fixed term tenancy ends - if there’s a written contract, or during a tenancy with no fixed end date - known as a ‘periodic’ tenancy.

Section 21 Notices are only for use when the prescribed documents have been served on the tenant at the start of the tenancy. You cannot use a Section 21 notice if you have not given the tenants copies of:
• the property’s Energy Performance Certificate
• a current gas safety certificate for the property - You must have given the tenants a copy of the current gas safety certificate before they moved in.
• the government’s ‘How to rent’ guide
You are also required to secure the tenant’s deposit in a Tenancy Deposit Scheme. This government-backed scheme ensures that the tenants get their deposit back at the end of their tenancy, so long as they have not damaged the property, have met the terms of the tenancy agreement and have paid all their rent/bills. You must ensure that such a deposit is put in a scheme within 30 days of its receipt and provided the information of where it is secured to the tenant. Failure to secure a tenant’s deposit will invalidate a Section 21 Notice.

You are also unable to use a Section 21 Notice if it is less than 4 months since the tenancy started, or the fixed term has not ended, unless there’s a clause in the contract which allows you to do this.

If the tenants do not leave by the specified date then you can apply to the court for a Possession Order. You may wish to use the accelerated possession procedure if you are not claiming rent arrears as generally this route is quicker than applying for a standard possession order and there is usually no hearing involved.

If you want to claim rent arrears then you may either use the standard possession route or use the accelerated possession procedure but then make a separate claim for recovery of the outstanding rent.

The decision as to whether or not to use the section 8 or section 21 route is complex and we would recommend a landlord seeks early advice as to which mechanism to use.

If you require more advice and assistance on Section 21 Notices or which possession proceedings route would suit you then please contact laura.day@maplessolicitors.com or daven.naghen@maplessolicitors.com and we will be happy to help.

Introduction

So the country has decided; the leave vote wins.  We are now living with the uncertainty of that decision, and it may take at least two years before we really start to know the full consequences of our vote.

What will happen to our employment laws?  Probably no other area of our laws boast as much EU influence as our employment laws.  How much change will follow once the UK eventually leaves the EU?

Wholesale changes to employment law?

Changes, if any, will only probably follow once we have negotiated our exit terms after initiating “Article 50”.  That seems to be at least two years away for now.  The extent of any changes that will occur will be significantly dependent upon the terms of our exit.  For example if we say joined the European Economic Area as some Brexiters have suggested, then it may be part of the agreement that we must adhere to EU legislation on employment law even if we have no vote or say in making these laws.

Even if we agree our own very distinct arrangements with the EU, if we want to keep good trading relations and say be part of the single market, then it is likely to be a requirement of the EU that we retain key aspects of EU employment law so that for example there is an equal trading playing field.
The employment law landscape will to a degree also possibly depend on which party is in government.  With all the uncertainty currently, it is not beyond the realms of possibility that there may be a general election in the near future.  If the Labour Party were to form a government in the aftermath of the out vote, then there is less likely to be changes than if say the Conservative Party remain in government.

In short, generally speaking there seems a fair chance that there is unlikely to be wholesale changes to our employment legislation despite the uncertainty as to what exactly the future holds for our country.

Possible areas for change?

• Discrimination Law

There does not appear to be much likelihood of substantial change to our anti-discrimination laws/equality laws.  Many of the legal principles in these areas pre-date our membership of the EU and involve such principles that are considered fundamental to developed societies.  For example the vast majority of people would wholeheartedly agree that we should have legislation in place to protect workers from discrimination on grounds of race, age, sex, disability etc.  The debate in these areas usually relates to the extent that the legislation should protect persons with such protected characteristics.  For example there might be a change to compensation levels for discrimination claims, perhaps limiting them to the same levels as within unfair dismissal claims.

• Family friendly laws  

Again much of the fundamental principles of our family friendly legislation, e.g. maternity rights, shared parental leave etc reflect the way that modern society thinks.  Also some of the law here, e.g. right to shared parental leave, the right to request flexible working, are not EU based but relate purely to domestic measures.  Much of our maternity leave legislation is in excess of minimum EU requirement.  Therefore it would seem a logical conclusion to sumise there are unlikely to be many changes in such laws following our exit.

• Holidays and Holiday Pay

Our employment legislation goes further than EU law for minimum holiday requirements.  The UK requirement is for a minimum of 28 days (including public holidays) of annual leave per annum based upon a worker doing 5 days per week or more.  The EU minimum requirement is 20 days per annum.  Hence our exit is unlikely to effect any change to this part of our legislation.

There may be some scope though for changes in respect of holiday pay.  Some provisions here are unpopular with UK businesses, e.g. the right to accrue holidays during sick leave and the fact that holiday pay should include matters like commission and certain forms of overtime payments.  An exit might well lead to our Government, especially if it remains a Conservative Government, to undertake a review of these matters and perhaps make changes that are more favourable to UK businesses.

• Transfer of Undertakings (“TUPE”)

Although wholesale changes are unlikely, our Government may be inclined to review the unpopular restrictions on harmonising terms and conditions of employees following the transfer of a business.  Relaxing these restrictions may have a positive effect as it will give UK businesses more leeway in such matters.

• Agency Workers

The Agency Workers Regulations 2010 provide certain protections for agency workers such as the right to the same basic working and employment conditions as a direct employee/worker of the hirer after 12 weeks on an assignment.  These rules are extremely unpopular with UK businesses, and again a Conservative Government may seek to relax or lift these restrictions in order to help such businesses.

• Referrals to the Court of Justice of a European Union (“CJEU”)

One possible significant change and of potential real benefit to our legal system, may be that there will no longer be a requirement of our courts/tribunals to refer to the CJEU an issue involving a question of EU law which is uncertain or needs to be clarified.  These referrals are often extremely expensive and can cause huge delays.

Conclusion

It is impossible to say with any certainty how our employment legislation will change following our exit.  However there seems a fair chance that there will not be wholesale changes, but perhaps some “fine tuning” and more modest changes.  Furthermore any such changes are not likely to occur for the next two years.

If you require advice or assistance on any issues relating to this article then please contact Daven Naghen on 01775 722261 or email daven.naghen@maplessolicitors.com or write to our offices/arrange an appointment at our offices at 23 New Road, Spalding, Lincolnshire, PE11 1DH.