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Business Services
Whatever the legal needs of your business, Emmetts Solicitors are here to help.
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Whatever type of business you have - We can Help
Whether you have your own business, are thinking of setting one up or are part of a larger organisation there are a wide range of laws and regulations affecting all areas of your business.
Whatever your business type, model or size, we can help in all its legal requirements from formation to dissolution, from issuing shares to dismissing directors. Emmetts Solicitors have the experience and the knowledge to guide you and your business in the right direction.
Contact us today - We're always happy to help
Put Up or Shut Up
27th May 2008
In conducting legal disputes, it is normally important to raise the issues you want to contest at the beginning of the proceedings. Otherwise, there is a risk that the court will not allow them to be argued, or possibly that it will make an unfavourable order for the division of legal costs.
A recent case illustrates the point. A property dispute had arisen because a house builder, which had used the claimants’ land to construct a sewer, had failed to reinstate the land as required under their agreement. The land owners issued a statement of claim. The builder wished to argue that the claim was issued in the wrong court, which, in its view, did not have jurisdiction to hear the matter in dispute.
However, the acknowledgement of claim did not indicate that the matter of the court’s jurisdiction was to be argued, with the result that the Court of Appeal ruled that the house builder had accepted the jurisdiction of the court. The Court therefore rejected the house builder’s right to argue the point.
For advice on any commercial property matter, please contact Richard Emmett.
Is a Risk Assessment Necessary?
23rd May 2008
These days, health and safety issues are important considerations for the management of most firms and the potential ramifications of failing to adopt robust health and safety policies are now well known.
However, a recent case has indicated that failure to carry out a risk assessment may not necessarily prove the contention that appropriate steps were not taken to make a procedure safe. Only if it can be shown that the employer did not take steps to make the risk associated with the operation of the procedure as low as practicable can the causal link necessary in order to make the employer liable for an injury to an employee be established. This does not necessarily mean that a formal risk assessment has to be available for the particular operation which gave rise to the injury. Also, merely breaching the Manual Handling Operations Regulations 1992 is not in itself sufficient, as to establish liability under statute law the breach must be shown to have caused the injury.
In the case in point, an employee was injured when carrying out a mechanical handling operation. The employer successfully argued the risk assessment point in the Court of Appeal. However, the evidence in this instance showed that the employer had failed to take appropriate steps to make the operation safe and so the employer was found liable for the injury to the employee.
“Whilst not having evidence of a formal risk assessment will not of itself undermine an employer’s defence against a claim that insufficient steps have been taken to minimise the risk of injury, carrying one out is the best way of identifying what needs to be done to protect the health and safety of employees,” says Richard Emmett. “We can advise you on any aspect of health and safety at work.”
Loss and Damage – Economic Damage not Physical
16th May 2008
Misunderstandings are at the base of many legal disputes and nowhere is this more evident than in disputes involving insurance claims. Recently, a company which used scrap metal found that it had inadvertently received scrap contaminated with small amounts of radioactive plutonium.
The radioactivity itself had not caused any significant problems other than the resultant cost of disposal of the contaminated material, which had to be carried out under the controlled conditions that apply to radioactive waste.
Once the company had disposed of the radioactive material, it reclaimed the cost from its insurers, relying on a clause that insured ‘loss…or damage due to contamination…by radioactive materials utilised in the manufacturing process’.
The insurers argued that in the context of the insurance policy (an ‘all risks’ material damage policy) the clause referred to physical damage, not economic damage.
The judge, considering the policy as a whole, found it difficult to envisage that the intention would have been to cover a completely different type of loss in a policy otherwise worded to deal with damage to property. The addition of cover relating to loss due to radioactive material was to bring into cover something which would otherwise be excluded (most insurance policies exclude liability for loss due to radioactive contamination).
Nor had the cost of disposal of the radioactive material been caused by its being used in the manufacturing process per se – accordingly, the loss was not covered by the policy.
If you are in doubt as to the meaning of your insurance policies or any other contracts or legal documents, we will be pleased to advise you.
Mediation – Delay May Have Costs Implications
15th May 2008
There have been a number of cases in which a refusal to mediate on the part of one party in a dispute has led to that party carrying the costs (at least in part) of the other party, even though the party which refused to mediate won the case. Recently, however, a case has suggested that there may also be adverse costs implications in the event that one of the parties unreasonably delays consenting to the commencement of mediation ‘until very late, when its chances of success are very poor’.
This is another example of the impatience shown by the courts to intransigent litigants.
If you have a commercial dispute, we can help you negotiate a satisfactory outcome.
Tenant Beware
8th May 2008
When there are problems relating to defects in premises that are let, the tenant will normally try to obtain redress through the repairing covenant. However, if that does not look like the best way forward, it is sometimes possible to bring an action for nuisance against a landlord who fails to take action.
In a recent case, a tenant took action against his landlord for nuisance relating to the ingress of water into his flat, alleging that this interfered with the ‘enjoyment of the property’. However, the problem had existed before he leased the flat, and this was the tenant’s undoing. The court held that the landlord could not be liable in nuisance for damage that pre-dated the grant of the lease. The moral for prospective tenants is ‘tenant beware’.
Data Protection – New CCTV Guidelines
3rd May 2008
Many people are not aware that the use of closed circuit television (CCTV) cameras is covered by the Data Protection Act (DPA).
The Information Commissioner’s Office has published an updated version of the code of practice giving guidance and advice for CCTV users on how to comply with the DPA. This addresses the issue of sound recording, which the guidance describes as ‘highly intrusive’ and it warns organisations that its use would only ever be justified in highly exceptional circumstances.
The guidance also includes a simple checklist on compliance for users of very limited CCTV systems for which the full provisions of the code would be too detailed.
The updated code of practice can be found at http://www.ico.gov.uk/Home/for_organisations/topic_specific_guides/cctv.aspx.
Employing Illegal Migrant Workers
25th April 2008
New measures designed to tackle illegal migrant working came into force on 29 February 2008. These measures, contained in the Immigration, Asylum and Nationality Act 2006, include:
- a system of civil penalties for employers who employ illegal migrant workers – the maximum civil penalty per illegal worker is £10,000;
- a new criminal offence for employers who knowingly employ illegal migrant workers – this offence now carries a maximum two year prison sentence and/or an unlimited fine; and
- a continuing responsibility for employers of migrant workers with a time-limited immigration status to check their ongoing entitlement to work in the UK.
The new measures do not significantly alter employers' responsibilities. Employers were already required to check a prospective employee’s right to work in the UK in order to establish a defence against conviction for employing an illegal migrant worker. Under the new measures, employers can obtain a statutory excuse from payment of a civil penalty if they have carried out the required checks on a prospective employee’s documents. In addition, employers are required to undertake repeat document checks, at least once a year, for those employees who have limited leave to enter or remain in the UK, if they are to retain the statutory excuse. However, the excuse will not apply where an employer knowingly employs an illegal migrant worker.
A code of practice is now available containing guidance on the civil penalties for employers. This contains information on how the level of penalty may be determined and on the documents required for the purpose of establishing the statutory excuse. It can be found on the website of the Border and Immigration Agency at http://www.bia.homeoffice.gov.uk/.
Can Big Brother Read Your Emails?
23rd April 2008
Recently amended provisions of the Regulation of Investigatory Powers Act 2000 could further restrict the rights of organisations and individuals wishing to protect sensitive electronic information.
Part III of the Act covers the encryption of electronic data and requires holders of encrypted data to provide the means of putting this into an intelligible form when required to do so by the authorities. Failure to do so can lead to criminal charges, with a maximum sentence of up to two years in prison or five years in certain cases relating to suspected terrorism.
Many people choose to use readily available encryption programs to encrypt their email, files, folders, documents and pictures. These same technologies can also be used by terrorists, paedophiles and others to hide their criminal activities.
If the police or other public agency suspects that data encryption is being used to conceal any kind of criminal activity, then they have the power to serve a notice on the person in control of that data, be it an individual, company director or anyone else with responsibility. The legislation has already been used to demand encryption keys from several animal rights activists.
However, the Code of Practice governing the use of such powers allows the data owner or controller ‘reasonable time’ to comply.
“Data users can no longer assume that encrypting data means keeping it secret forever,” says Richard Emmett. “Data encryption is a powerful tool that can and should be used to protect sensitive data from prying eyes, but it does not mean that public authorities cannot get at it if required.
Avoiding Online Theft
21st April 2008
Theft using IT is a rapidly growing area of crime, with ever-greater sophistication being used to plunder the bank accounts of the vulnerable and to obtain credit and/or goods. The results can be substantial financial loss (in the short term in any event) and a compromised credit history.
In a recent case, a small business had its bank account cleaned out over the Christmas period after falling foul of a ‘key reading’ scam when using a laptop to access the account from an hotel. These scams occur when a public place or hotel room has a ‘key reader’ secreted nearby (or key strokes are read from a laptop situated nearby if a wireless system is used). The key reader records the key strokes and stores them, often yielding credit card numbers as well as the information needed to access online bank accounts.
Here is a short guide to reducing the chances of theft from your online bank accounts:
Make sure you use a secure online bank. The quality of security of Internet banking varies widely. In general, the more interactive (where you respond to prompts, as opposed to just entering information) the access to your account is, the better. Some new accounts offer a card-reader based access which is thought to be highly secure, although a recent report suggests that customers find the use of such devices cumbersome. The key here is to ask yourself how much information a fraudster would need to access your account and how much of that you are inputting. It wouldn’t take too much thought to work out that a surname keyed in by you is probably the correct response to the question ‘what is your mother’s maiden name?’
Make sure anyone with access to your IT or IT security information, or to files where such information is kept, is thoroughly vetted. This might well include cleaners, for example.
Do not access your account when away if at all possible. If you do need to do so, use a wired, as opposed to a wireless, connection. Never use an Internet café or similar establishment to access your bank account.
Make sure you have a good firewall as well as anti-spyware and anti-virus software and make sure you update it and run system scans frequently (daily if possible). Run a scan of your computer system immediately before accessing your bank account.
If you do access your account whilst away, make sure you can prove your whereabouts. That way, if you do suffer a loss, you will be able to prove you could not have made the withdrawals.
Annual Increase in Tribunal Awards
19th April 2008
The Employment Rights (Increase of Limits) Order 2007, which details the annual inflation-linked increase in limits on the amounts which can be awarded by employment tribunals, was made on 18 December 2007 and applies where the appropriate date falls on or after 1 February 2008.
The main increases in compensation limits are:
the maximum compensatory award for unfair dismissal has increased from £60,600 to £63,000;
the maximum amount for a week’s pay (for calculating basic award or redundancy payment) has increased from £310 to £330; and
the limit on the amount of guarantee payment payable to an employee in respect of any day has increased from £19.60 to £20.40.
As there is no statutory cap on the amount a tribunal can award in discrimination cases, the Order does not cover them.
The full list of the increases can be found in the Schedule to the Order at http://www.opsi.gov.uk/si/si2007/uksi_20073570_en_2.
The general tribunal system in the UK is being reformed, under the Tribunals, Courts and Enforcement Act 2007. Since 1 December 2007, tribunal chairmen have been called ‘employment judges’ as this more accurately reflects the nature of their role.
File Your Employer Annual Return Online
12th April 2008
Employers are reminded that the 2007/2008 Employer Annual Returns are due on 19 May 2008 and if you have 50 or more employees, you must file the Return online, otherwise you will incur a penalty.
If you have fewer than 50 employees, you will get £100 tax free if you file your 2007/2008 Return online.
In order to send your Return electronically, it is necessary to register for online services and it takes at least seven days to get the activation PIN needed to start filing online.
For more information, see http://www.hmrc.gov.uk/payeonline/index.htm.
Tax Returns – Greater Certainty
17th March 2008
From 31 March 2008, there is an even greater incentive to make sure corporate tax returns are lodged with HM Revenue and Customs (HMRC) on time.
From that date, returns lodged by the normal due date will only be ‘open’ for an HMRC enquiry (assuming there is no serious tax irregularity) for one year after they are filed, as opposed to the previous system of one year after the due date for filing.
For example, a corporate tax return filed on 1 May 2008 that is due to be filed on 1 July 2008 will only be open for enquiry until 30 April 2009. Previously, such a return would have been open for enquiry until 30 June 2009.
Says Richard Emmett, “This change is particularly beneficial for businesses which are in the course of negotiation for sale, as an early filing of the relevant return will allow comfort regarding the tax position to be obtained earlier.”
The position for returns filed late is that they remain open for enquiry until the end of the quarter (the quarter dates are 31 January, 30 April, 31 July and 31 October) following the anniversary of the day on which they are filed – i.e. a return due on 1 October 2008 which is filed on 1 November 2008 will be open for enquiry until 31 January 2010.
Similar changes are being made in respect of personal tax returns.
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