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Entries in Legal Update (6)

Wednesday
Apr062016

Law Changes For Businesses

The Small Business, Enterprise and Employment Act (‘SBEE’) brings in a number of changes for companies and LLPs throughout 2016.  These, in part, are aimed at increasing transparency in companies, simplifying company filing requirements and amending the directors’ disqualification regime.

Who do the changes apply to?

Do not be fooled by its name - the SBEE makes changes to company law and corporate governance that will impact almost all companies and LLPs.  Whatever the size of your business you should take careful note of what is new.

What has changed?

Register of Persons with Significant Control (‘PSC)

As of today, 6 April 2016, all companies and LLPs (excluding Official Listed and AIM traded companies) must keep a statutory register of all persons who hold significant control in their organisation.

In outline, a person will have significant control if:

• they hold 25% of the:

          - voting rights or shares (in the case of a company); or

          - voting rights or the right to receive 25% of the surplus assets (in the case of an LLP); or

• they have power to appoint or remove a majority of:

          - the board (in the case of a company); or

          - those involved in management (in the case of an LLP); or

• they exercise, or have the right to exercise, significant influence or control over a company or LLP.   

Individuals who indirectly hold shares through trusts or through a chain of companies may be deemed to be a PSC.

From 30 June 2016 the information contained within the PSC register must be available at Companies House through the company’s or LLP’s next annual confirmation statement (a replacement for the annual return - see below).  You must keep the PSC register up-to-date and note any changes to Companies House annually in the confirmation statement.  You must also keep the register accessible and must provide a copy of it within five working days of anyone requesting to see it.

These provisions, alongside the abolition of bearer shares which were introduced last year, demonstrates the government’s commitment to increasing transparency in UK corporates. It makes it increasingly difficult for individuals to be involved in companies and LLPs anonymously. Those individuals wishing to remain anonymous to the public for reputational reasons, to stay invisible to tax authorities or to hide investment profiles from family members or former spouses, may have to rethink the best way to protect their interests going forward.     

Most companies and LLPs will simply be required to list its shareholders and/or directors.  However, for companies and LLPs with complex group structures, close involvement of lenders, offshore shareholder interests or where shares are held in trust, this is an area of compliance that will require further analysis.  Failure to comply will be a criminal offence and could lead to a fine or, in severe cases, a prison sentence.

For more information on what to include in the PSC register, to receive a complimentary template register (only appropriate for simple structures) or if you would like to instruct us to draft your PSC register for you, please get in touch using the contact details below.

Companies House Filing Requirements

Accountants and lawyers will be interested to note that the SBEE makes a number of changes to Company House filing requirements in an attempt to simplify the process.  For example, annual returns will be abolished in June 2016 and replaced by the more flexible ‘confirmation statement’.  Furthermore, and as mentioned above, private companies will have the option to keep certain registers (such as the register of members) at Companies House rather than at their registered office or nominated inspection location.  

Abolition of Corporate Directors

From October 2016, subject to certain exceptions, all directors of UK companies must be natural persons.  If you are involved with a company which has a corporate director you have 12 months from when the provision takes effect to ensure it is removed.  

Gender Pay Gap Reporting

The SBEE requires the government to implement regulations requiring larger organisations to publically report their gender pay gaps.  The regulations were released in draft earlier this month.  To read more about this please click here.

More Information

For more information on the SBEE, or if you require assistance in preparation for the above changes, please contact Megan Radcliffe, Solicitor at Greene & Greene (meganradcliffe@greene-greene.com ~ 01284 717509).  To find out more about Greene & Greene please view www.greene-greene.com and follow @greenegreenelaw on Twitter.

Please note that this article is applicable as at 6 April 2016, is for general information only and does not provide an exhaustive list of the provisions implemented by the SBEE.   This article should not be used in substitution for detailed analysis of the SBEE, the amended Companies Act 2006 or any other associated act, regulation or guidance.

Wednesday
Mar022016

Gender Pay Gap Reporting

Last month the government published the draft Equality Act (Gender Pay Gap Information) Regulations 2016.  The regulations aim to tackle the gender pay gap in the UK.  Estimates from the Office of National Statistics suggest the current gap in pay between men and women is 19.2% for full-time and part-time workers. 

The regulations require all companies with over 250 employees: 

  • to publish annual statistics about their gender pay gap; 
  • to publish this information on a public website;
  • to ensure this information remains on the public website for at least three years; and
  • to share this information with the government  (the results will be ranked in a league table). 

Timescale 

The regulations are expected to come into force in October 2016.  

Employers are required to have a snapshot of their gender pay gap information prepared as at 30 April 2017 and publish the first reports within 12 months of that date.  Therefore, the first set of gender pay gap data is to be published no later than 30 April 2018. 

Information 

Employers will need to publish the following sets of data: 

  • the gender difference in mean and median hourly pay;
  • the gender difference in mean bonus pay over the preceding 12 months;
  • the proportion of male and female employees who received a bonus in preceding 12 months; and
  • the number of men and women working across quartile pay bands.

No penalties for non-compliance

Employers will not be obliged to provide a commentary on their figures and there will be no penalties for non-compliance.  This has drawn criticism from those who think employers should be made to explain why pay gaps exist in their workplaces and what action they will take to reduce the gap.

It remains to be seen if these regulations will have an effect and female employees will have to wait at least another two years to see if they are being paid on par with their male colleagues.  

For more information on gender pay gap reporting please contact Megan Radcliffe at Greene & Greene (meganradcliffe@greene-greene.com ~ 01284 717509).  To find out more about Greene & Greene please follow us on Twitter @greenegreenelaw and LinkedIn at linkedin.com/company/greene-&-greene.

 

Wednesday
Feb242016

Update on Holiday Pay Calculation

There has been much debate in recent years about how employers should calculate holiday pay and whether they need to include items such as overtime and commission.

In the latest instalment of a long line of cases the Employment Appeal Tribunal has confirmed that commission of the type Mr Lock earned should be taken into account when calculating holiday pay.

The facts of this case were as follows:

Mr Lock was employed by British Gas as a salesman.  He received a basic salary plus results-based commission which made up around 60% of his overall pay.

While on holiday Mr Lock received his basic salary and any commission earned during the previous period, which happened to be paid at that time.  However, since he was not working whilst on holiday, he could not generate any commission.  This meant he received less pay after a period of holiday, which he argued could deter him from taking holiday.

However, British Gas argued that they were complying with English law by paying Mr Lock his basic pay only while on holiday.

Ultimately the dispute ended up before the European Court of Justice, which confirmed that from a European Law perspective, commission of the type Mr Lock earned must be taken into account for holiday pay purposes. The question for the Employment Tribunal was whether English law could be interpreted in this way. The Tribunal concluded that it could and should be, but only in respect of the first 20 days of holiday each year (which is the amount of holiday prescribed under European law).

The Employment Appeal Tribunal has now confirmed the Employment Tribunal’s decision, although British Gas has stated that it will be appealing to the Court of Appeal.

So, where does this leave us? This case supports a trend in the case law which says that where there is an intrinsic or direct link to tasks which an employee is required to carry out and the payments they receive from their employer, those payments should be included in holiday pay. Whilst it seems highly unlikely to us that this principle will be successfully challenged on appeal, until we have a definitive ruling from the Supreme Court, the current uncertainty will remain. However, employees who believe that they may be owed holiday pay can still submit their claims to the Employment Tribunal and for this reason employers may wish to consider whether they should take action now to limit the risk of this happening.

If you would like to discuss how this decision affects you, please contact Selene Holden, Head of Employment Law at Greene & Greene (seleneholden@greene-greene.com ~ 01284 717436 ~ @selenecholden).  For more updates from Greene & Greene please follow us on Twitter @greenegreenelaw and LinkedIn at linkedin.com/company/greene-&-greene.

Monday
Oct262015

Businesses Beware - New Rights for Consumers

The Consumer Rights Act 2015 came into force on 1 October 2015, with implications for all business which provide goods or services to consumers, particularly affecting those who sell:

  • to consumers online, via telephone or email; and
  • in a consumer’s home or place of work.

Under the Act, a consumer is any “individual acting for purposes that are wholly or mainly outside that individual's trade, business, craft or profession.”  This new definition means that customers or clients who act partly for business purposes but mainly for personal purposes are now caught within the definition of consumer.

As well as consolidating much of the previous law relating to consumers’ rights and remedies against businesses, the new Act clarifies certain rights of consumers, and introduces a number of new remedies. These changes include:

  • the right for consumers to reject faulty or damaged goods within 30 days of the date of purchase or date of delivery - even if the goods are not rejected in this time, consumers have up to 6 months from the date of purchase or delivery to ask a retailer to repair or replace a faulty item, and if the retailer does not or cannot do this, the consumer can ask for the price to be reduced, or to return the goods;
  • goods must now be delivered by retailers within 30 days of the consumer’s order being accepted, unless a longer delivery period has been agreed with the consumer at the time of order;
  • increased rights for consumers in relation to defective ‘digital content’ which includes software provided on a CD and also downloaded software and files such as videos and music files. Digital content must be of satisfactory quality and fit for purpose, and if it is not, consumers can ask for a price reduction, repair or replacement, or (in certain cases) a refund; and  
  • the clear right for consumers to request re-performance of services where these services have not been carried out correctly.  Also, any business providing services to consumers must provide the service within a reasonable time of the consumer placing the order, unless a set period was agreed at the outset.

The Act is a culmination of various changes to the laws concerning consumer rights in the past two years, including an expansion of the previous distance selling rules. All businesses which deal with consumers, and particularly those mentioned above, should carefully review their Terms & Conditions and selling practices to ensure that they comply with the new rules.

If you are a business selling to consumers and would like advice on how the new Act affects you, please contact Andrew Cooper in the commercial team at Greene & Greene on 01284 717511 or by email at andrewcooper@greene-greene.com.

Thursday
Apr092015

An invitation not to ignore!

A recent High Court decision has emphasised that if you are a party to a dispute, whether or not it has resulted in Court proceedings, you should think very carefully before rejecting or even ignoring an invitation to explore the scope for resolving the dispute through some form of Alternative Dispute Resolution (ADR).  ADR is used to describe dispute resolution methods such as mediation, expert appraisal and expert determination, but not court proceedings or arbitration.

A failure to respond reasonably or at all can have significant financial consequences even if your case is successful at a trial or final hearing.

In Laporte v Commissioner of Police of the Metropolis, although the Metropolitan Police successfully defended the Claimant’s claim, the Judge concluded that “the Defendant’s failure fully and adequately to engage in the ADR process should be reflected in the costs order I make…” and, having weighed up various factors, directed that the Metropolitan Police’s claim for costs should be reduced by one third.

Whilst ADR may not be suitable in all cases, this latest decision highlights the need for parties to take all ADR proposals seriously and only reject them after seeking appropriate legal advice.

Even in a case where settlement appears unlikely, ADR can help you to better understand your opponent’s case, narrow down the issues and, if the case does proceed to trial, avoid costs sanctions of the type imposed in Laporte.       

For more information, or advice in relation to a dispute that you may have, please contact Ben Fox, a Solicitor in our Dispute Resolution Team on 01284 717 442 or benjaminfox@greene-greene.com. For more information on Greene & Greene go to www.greene-greene.com and follow us on Twitter @greenegreenelaw.

Tuesday
Jun102014

New consumer contract rules come into force

On 13th June 2014 the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 will come into force and will apply to all businesses who sell goods or services to consumers. Any businesses that fail to comply with these regulations could face significant consequences.

The new rules predominantly affect businesses which sell their goods or services to consumers remotely (such as though websites, or by email, telephone or post) and/or who agree to sell goods or services during meetings with consumers away from the business’ premises. This last category catches not only the traditional door-to-door salesman, but also all other businesses which meet with their customers in their homes or places of work, such as tradesmen and professional advisors.

Businesses to whom the regulations will apply are required to provide certain information to their consumer customers before, and after, entering a contract or agreement with them. Consumers are also given a 14 day cooling-off period, which has been extended from seven days under the current rules. Businesses which do not provide the necessary information could find that their consumer customers can return goods for a full refund over 12 months after they were originally supplied, or refuse to pay for services that the business has already provided (even if there is nothing wrong with them). The business may also commit a criminal offence and be liable to a fine.

Please contact Andrew Cooper (details below) for a more detailed briefing note on this new legislation and its effect on your business. All businesses which deal with consumers should review their websites, practices and terms and conditions in light of these new rules to ensure that they do not get caught out. Greene & Greene are happy to assist with this process.

If you require further information about this topic, please contact Andrew Cooper on andrewcooper@greene-greene.com or 01284 717511.