member

Ed Savory, an Associate in Leathes Prior’s Franchising Team, attended the bfa London & South East Regional Forum. Each quarter, franchisors and advisers in the Franchise Industry meet to discuss the current “hot topics” in the market.

The following issues were discussed:

Updating franchise documentation – how, when & why? It is important to keep documentation under constant review and this does not just mean the Franchise Agreement. In particular, think about marketing materials, website, Franchise Information Memorandum (FIM) and Manual. The risk for franchisors is being sued by a franchisee for over selling the business proposition. This is not helped by any provisions of the Franchise Agreement which are out of date being unenforceable.

Franchisors would be well advised to appoint one person to be responsible for reviewing and updating documentation and, of course, advice from their solicitors should be at hand.

Protection of franchisor Intellectual Property (IP) First of all a reminder was given of exactly what IP is – essentially the brand and the unique franchised business system, all know how as set out in the operations manual. The registration of trademark(s) is an important initial step – remember that the correct class(es) should be applied in order to make the registration fully effective. If your business used a designer (or some other third party) to create the brand then you should ensure that all rights in the design rights have been duly assigned. The franchisee’s employment contracts should also contain relevant restrictions.

Franchisee improvements – embrace or dismiss? Franchise success is about both consistency and constant development. Whilst all franchisees must adhere to the system if any of them have any suggestions for improvements then these should be embraced. Furthermore, the proposing franchisee can act as a guinea pig for trying out a certain idea before full roll-out across the network.

How to educate the general public about franchising The bfa is looking closely at how to educate the general public about franchising – that is business format franchising. The next bfa Chairman (Sir Bernard Ingham retired this year) should be a generally recognisable figurehead. Franchisee membership should also assist.

Franchisee recruitment – what are franchisors experiencing? The evolution of online marketing has meant that most franchises are now using a “mix of media” in order to promote sales both in terms of new franchisees and business generally. The current market trend is that the time taken to recruit is slowing as prospective franchisees are more cautious about taking the leap.

bfa Natwest survey The bfa survey (as previously reported on) shows that the franchising industry in the UK is stable and growing. 80% of franchisees are generally happy, 929 franchises in operation in the UK with franchisees in 40,000 locations with a total turnover of £13.5bn.

Employment solicitor Sam Greenhalgh reports on a recent decision of the Employment Appeal Tribunal (EAT), which considers when it is appropriate to identify a ‘pool’ from which employees are selected for redundancy.

The employer in this case, a golf club, decided to make its club steward redundant in order to save costs. The employer consulted with the employee and subsequently confirmed his redundancy following a number of meetings with him. His duties, which included the management of the bar area, were to be undertaken by other members of the catering and bar staff.

The employee brought a claim for unfair dismissal, which was upheld by an employment tribunal. The tribunal concluded that in making the club steward redundant, without considering whether to identify a pool of employees from which to select for redundancy, was not within the “range of reasonable responses” required for the dismissal to be fair.

The employer appealed to the EAT. The EAT confirmed that there is no requirement to identify a pool for selection in a redundancy situation, and it might be perfectly reasonable for the employer to consider a single employee for redundancy. The tribunal in this case had failed to consider whether, given the nature of his job as a club steward, it was reasonable for the employer not to consider identifying a wider pool of employees from which to select. The employer’s appeal was upheld and the case remitted for a rehearing.

Comment

There is no requirement to follow a selection process in a redundancy situation, in circumstances where an individual’s role is no longer required and they are the only person carrying out that role. Provided the employee is properly consulted with prior to confirming the redundancy, the dismissal will be fair. However, it might still be necessary as part of the consultation process to consider whether it is appropriate to ‘bump’ another employee, making them redundant instead in order to retain the services of the employee whose role is no longer required.

If a number of employees carry out similar duties, then it will be more appropriate to identify a pool of employees from which to select for redundancy.

A copy of the judgment is available here

Steeles Law Head of Real Estate Michael Fahy and Trainee Solicitor Laura Tanguay consider the High Court decision of Kettel v Bloomfield [2012] EWCA 1422 (Ch) on the right to use car parking spaces and the landlord’s ability to reallocate spaces.

The Claimants in this case held leasehold interests in eight flats in a development known as City Walk. Each lease granted the tenant the right to park in a designated parking space.

The freehold owner of City Walk obtained planning permission to build a new housing block; the location of which would be in the same spot as the parking spaces. The landlord therefore wrote to each tenant to explain that their parking spaces were being reallocated and promptly fenced off the area.

The tenants did not consent to their parking spaces being moved and sought an injunction to restrain the landlord.

Type of ‘right’

The first question considered by the court was the nature of the right granted. Did the parking spaces form part of the property demised by the lease, or did the tenants merely have easements to use the spaces? The distinction was important as the extent of the rights granted determined the extent of the landlord’s limitation in developing the land. If the spaces formed part of the demise, the landlord would be prevented from building on them or even in the airspace above them.

The court held that the terms of the lease did not amount to a demise of the car parking spaces.

The case law on whether or not a right to park a car can exist as an easement is far from clear. The rule established in the case of Batchelor v Marlow [2003] 4 All ER 78 stated that a right to park a car could not be an easement if it left the servient owner without any ‘reasonable use’ of his land. However, the subsequent decision of Moncrieff v Jamieson [2008] 4 All ER 752 criticised the ‘reasonable use’ test and held that the correct test should be whether the servient owner retains “possession and control” of the land subject to the reasonable exercise of the easement.

However, the court in this case confirmed that it was obliged to apply the ‘reasonable use’ test as set out in Batchelor. It was held that the rights did not deprive the landlord of all reasonable use of the land – the landlord could cross the space, enter the space to maintain or resurface it, lay conducting media under the space and install overhead projections such as wires. The rights were therefore upheld as easements.

Movement of the spaces

None of the leases expressly stated that the landlord could move the spaces and the court held that no such right could be implied. The court looked to the case of Greenwhich NHS Trust v London & Quadrant Housing Association [1998] 1 WLR 1749 in confirming that the landlord could not unilaterally extinguish an easement by providing an equivalent easement.

Remedy

The landlord argued that damages were an appropriate remedy as the loss was, in his opinion, trivial given that the tenants would be given spaces new only yards away. However, because the landlord had not made the offer of new spaces in a way that would be binding, the court held that it had sought to escape the burden of the rights granted and consequently allowed the injunction.

Practical solutions

If a tenant has a right to park in a designated parking space there is no right to reallocate the space, even if the new space is only a short distance away and equally as convenient. The safest course of action is to grant parking rights in relation to spaces ‘designated by the landlord from time to time’

If you require advice on any issues raised in this article please contact Michael Fahy on 020 7421 1720 or mfahy@steeleslaw.co.uk.

Following a previous article by Jean Parkinson published in the Solicitors Journal which outlined the proposals to crackdown upon residential squatters, the bill has now been passed.

As of 1 September 2012 it will become a criminal offence to squat in a residential property, whether it is vacant or not, with those found guilty at risk of a maximum six month term of imprisonment, a fine of £5,000, or both.

Whilst many will argue that it places pressure and further stigma upon those who might be vulnerable and in need, the rights of homeowners have firmly been placed to the fore in providing them with a better set of armoury with which to protect their properties.

If you require further information or advice on any issues raised in this article please contact Jean Parkinson on 020 7421 1720 or jparkinson@steeleslaw.co.uk

Specially commissioned Art, Design and Engineered Creations.

Successful art and design solutions require more than creative vision, they demand professional execution, engineering precision and robust project management, topped with exceptional customer service.

Former creative digital agency founder and artist Jake Hithersay, has started a new venture in partnership with a highly experienced industrial product design engineer and artist. This combination of experience enables www.styleandcraft.co.uk to offer a service that operates at the intersection of bespoke art, object design and technical engineering.

With a background in Fine Art, long(ish) career in creative and digital, as well as a stint in bespoke branded merchandise, Style & Craft represents a passion for creating tangible, real life visual statements for different kinds of environments.

Style & Craft is not simply a supplier of art and collections, it functions as a Design and Creation Consultancy, specialising in highly creative, technical or ambitious bespoke art and installations that can critically enhance the purpose, value and perception of spaces.

From corporate environments, to leisure and hospitality spaces or public realm, Style & Craft have a mission to make almost anything possible. 

Combining vision, artistry, process and precision to enhance spaces.

For any business undertaking fit-outs, commissioning large-scale installations, or requiring highly customised artistic pieces, Style & Craft, we hope, provides a number of advantages:

Creative & Artistic Direction: We start with the vision. Style & Craft provides expert guidance on concept development, material selection and aesthetic alignment, ensuring the final creation perfectly reflects either the client’s brand ethos or contributes to the meaning of the space and achieves maximum visual impact.

Professional Project Management: We eliminate the risks associated with artistic commissions. Every project is managed with rigour and proven processes, ensuring timelines, budgets and technical specifications are met precisely from concept development through to installation.

Realisation: Ensuring success at the manufacturing and installation stages. Style & Craft excels in translating sometimes complex artistic visions into physical reality, utilising artisan craftsmanship and engineering expertise, specialised fabrication processes and knowledge to ensure durability, compliance and flawless execution.

Spatial Enhancement: Our creations, whether a large-scale sculpture for a corporate lobby, a unique display of specially sourced artefacts for a boardroom, or a collection of curated art for a hotel, or a visual statement for a visitor attraction are investments that bring multiple benefits to everyone who uses the space. 

Well considered, designed collections and engineered creations, sympathetic to their context, space and narrative will:

> Elevate identity and perception

> Create genuine human connection

> Serve as an intellectual anchor and differentiator

> Deliver a narrative and create a memory

> Enhance the feeling of well-being

> Increase appeal and perceived value

Working in collaboration and partnership to achieve a vision.

We believe that successful bespoke creation projects require a methodical, technical approach. This blend of strategy, management, artistry and sculptural engineering delivers measurable value.

We’ll undertake small to medium scale projects, from single artistic commissions, to larger, more complex design and production projects that span environments.

We work directly with businesses that have a space that needs an identity but we also work in close partnership with architects, interior designers and brand agencies, serving as creative and technical specialists that help bring complex artistic visions to life within the project brief.

“Style & Craft’s mission is to make ideas come to life, triggering memorable experiences and emotional responses that enhance environments through tangible visual presences. We’re also about de-risking the artistic, creative led engineering process with proven methodology and expertise.

Adding creative value and achieving success when the artistic brief is complex, or the engineering requirement is challenging, requires a combination of experience, skills, disciplines and processes, ensuring any problems are solved without compromising the vision.

Bridging the gaps between abstract design concepts, technical feasibility and high quality outcomes also calls for close collaboration with stakeholders, tight project control and a determination to achieve perfection. The purpose of every project is to deliver the best possible outcome within its context and constraints.” 

– Jake Hithersay, Founder

Exclusive invitation and introduction for Chamber members.

If your business is planning a new development, rebranding a corporate space, requires a highly distinctive bespoke installation or wants a truly unique statement piece, partner with the specialists that bring process and precision to art.

Jake Hithersay invites all Chamber members to visit the website or contact Style & Craft for a complimentary initial consultation on any bespoke art, engineered sculptural creation or curated collection project.

Learn more and about the art of the possible, visit www.styleandcraft.co.uk

4myschools are at the Festival of Social Enterprise on Tuesday 11th Sept- looking to share the benefits of sustainable social enterprise locally for schools, teachers and children.

We are looking to find a franchisee to run their own values based businessfor Norfolk schools and teachers.

Speakers at the event include Nigel Kershaw CEO Big Issue, Cliff Prior CEO UnLtd, Sara Burgess the CIC Regulator.If there is anybody interested in Social Enterprise in Norfolk then this is the place to be.

We would be delighted to share our experience with anybody interested in making a difference through social enterprise.

see: www.festivalofsocialenterprise.co.uk for more details

Venue: The Forum Norwich – Please come and have a chat with us.

Kind regards

Mark

Due to expansion and emerging market opportunities CTS Ltd are looking for a dynamic business focussed individual to become CEO and to join the Directors and Management team. The role will include the implementation of the company’s strategic plan to complete business objectives and continue future growth.

The right candidate will receive salary and equity incentives in line with company targets. Please apply in writing with a current CV to

Gavin Springall company Director 1st Floor Phoenix House 3 White Lodge Business Park Hall Road, Norwich, Norfolk. NR4 6DG

Tel: 01603 610586 | Fax: 01603 612245 | E-mail: info@construction-training.comweb: www.construction-training.com

A recent decision of the Employment Appeal Tribunal (EAT) illustrates how an employer can take steps to prevent a breach of trust and confidence that may otherwise give rise to a claim for constructive dismissal. Employment Principal Lorna Townsend reports.

In this case, the employee worked as a chef in a pub. He was suspended from work by his manager and invited to an investigatory meeting on the grounds that he had not turned up for work when he had been asked to do so. At the investigatory meeting, it was established that the employee was on authorised holiday at the relevant time. As a result, it was decided that no further action should be taken.

The employee raised a grievance about the way he had been treated by his manager. He then attended two return to work meetings at which various options for his return were discussed, but he subsequently resigned as a result of his treatment by the manager and the company. His grievance was not concluded, on the basis that he had refused to return to work.

The employee’s claim for constructive unfair dismissal was not upheld. The tribunal agreed that the manager’s actions were inappropriate and over-reactive, and concluded that they were likely to damage the relationship of trust and confidence with the claimant. However, the tribunal was satisfied that the respondent had prevented the manager’s conduct from constituting a breach of the implied term of trust and confidence entitling him to resign and regarding himself as constructively dismissed. In its investigation of the disciplinary matter, the respondent had accepted the claimant’s version of events and stated that no further action would be taken. He was also offered the option of transferring to another pub to work with a different manager.

The EAT has now dismissed the claimant’s appeal against the tribunal’s decision. It has emphasised the distinction between a fundamental breach of contract that an apology by the employer cannot cure, and there being action by an employer that can prevent a breach of contract taking place. In this case, the “fair minded” way in which the investigatory meeting proceeded meant that it prevented the matter escalating into a state of affairs that would have justified the claimant leaving and claiming he was constructively dismissed.

Comment This case provides a good example of how, in following a fair procedure, the employer has avoided the escalation of a dispute into circumstances giving rise to a fundamental breach of contract.

As the EAT points out in its judgment, the whole object of a grievance procedure and a disciplinary procedure is that the employee has the opportunity to articulate his concerns about the behaviour of management, and to defend himself against allegations that in some way he is unfit to remain in the employment of the employer.

If an employer acts fairly and reasonably in following such procedures, it will often be able to prevent a fundamental breach of contract occurring, meaning that the employee will have no grounds for claiming constructive unfair dismissal.

A copy of the EAT judgment is available here

Many of our clients have required advice regarding the recent website cookie laws and now that the dust has settled we have taken a look at how companies have interpreted the new law in our article Cookie Ruling Roundup.

The new ICO rules were not very clear regarding the use of Google Analytics on sites which uses cookies and our article Cookies, the ICO, and what you need to know is our interpretation of the rules. I hope you find this uesful and we would appreciate your views or experiences on this or if you would like to find out more please contact me, Mark Ellaway on 01603 513080

Steeles Law Head of Planning & Environment David Merson looks at the Coalition’s proposals to revise the rules governing householder development as part of the Prime Minister’s growth plan.

David Cameron has announced that he is “more determined than ever to cut through the dither that holds this country back”.

The Coalition is apparently “… determined to cut through the bureaucracy that holds us back. That starts with getting the planners off our backs, getting behind the businesses that have the ambition to expand, and meeting the aspirations of families that want to buy or improve a home”.

He is therefore planning an emergency three year-long free-for-all in house extensions allowing homeowners to build up to eight metres into their gardens without local council planning permission.

The proposals have been flagged up in a Ministerial Statement issued today by Eric Pickles.

The temporary relaxation of the permitted development rights regime is proposed to remove unnecessary cost and time delays to people’s improvement plans because at present planning permission is required for any change to a home that extends more than three metres from the property’s rear wall in the case of a terraced property and four metres in the case of a detached property.

The consultation paper has not as yet been issued so precise details are unavailable but it is understood that it is now proposed that during the relaxation, householders will be able to build single storey extensions to extend to six or eight metres beyond the property’s rear wall, depending on whether it is a terraced or detached property. Existing restrictions will continue to apply in Conservation Areas.

Further changes are also being promoted in respect of the expansion of business premises to allow shop expansion by 100 sq m and industrial units by 200 sq m up to the boundary of the premises.

There is also a U-turn on recently shelved plans to allow the change of use from commercial to residential purposes, without the need for planning permission subject to an “opportunity for authorities to seek a local exemption where they believe there will be an adverse economic impact”.

The removal of some limited householder planning control in respect of extensions and conservatories in well-to-do suburbs is unlikely, in itself, to solve the current economic crisis given the difficulties with bank lending and the ability to fund such development.

There must however be some concern about first, the short term impact that it will undoubtedly have on relations between neighbours who have different views on the impact of any development proposals that might come forward and second, the longer term impact of any unrestrained development on the places in which people continue to live and work.

Unrestrained shop and industrial extensions of the magnitude proposed could have significant long term implications although no ‘adverse economic impact’ exemption is apparently proposed for this proposal.

If you require further information or advice on any issues raised in this article or any other planning & environmental matter please contact David Merson on 020 7421 1720 or dmerson@steeleslaw.co.uk

As the end of the year rolls around, most business owners are juggling holiday deadlines, last-minute jobs, and planning for January. With all that going on, it’s easy for the financial side of things to slip, and the same mistakes crop up year after year.

With a little awareness and a bit of organisation, these mistakes are completely avoidable. Here are the most common ones we see and how to make sure you don’t fall into the same traps.

1. Leaving Bookkeeping Until the Last Minute

It’s tempting to think you’ll “catch up in January”, but late, rushed bookkeeping often leads to missing receipts, duplicated transactions, and inaccurate figures.

Avoid it by:

• Setting aside one hour each week to your books.

• Matching bank transactions as you go.

• Using software like Xero to automate as much as possible.

A tidy set of books now saves a lot of pain later.

2. Forgetting to Claim Allowable Expenses

We regularly see business owners pay more tax simply because they didn’t know what they could claim.

Commonly missed expenses include:

• Mileage or business travel

• Home office costs

• Software subscriptions

• Training and development

• Mobile phone use (proportionately)
  

Avoid it by:

• Keeping digital copies of receipts

• Reviewing your expense categories

• Asking your accountant if you’re unsure, it’s always worth checking

3. Not Reconciling Your Bank Accounts

Your accounting software and your bank balance should match. If they don’t, something’s wrong, and it can snowball into bigger issues if ignored.

Avoid it by:

• Reconciling monthly (or weekly if possible)

• Checking for duplicate invoices, missing payments, or miscategorised transactions

• Making sure all payment platforms (Stripe, PayPal, SumUp) are also reconciled

4. Misunderstanding VAT Deadlines and Rules

Year-end is often when VAT mistakes become obvious. The most common issues include entering the wrong VAT rate, forgetting to claim VAT on expenses, or missing a submission deadline.

Avoid it by:

• Reviewing VAT rates regularly

• Running a quick VAT return check before filing

• Setting calendar reminders for deadlines

• Making sure your bookkeeping software is set to the correct scheme (standard, cash, flat rate)

5. Poor Stock or Inventory Tracking

For businesses that hold stock, inaccurate counts lead to incorrect profit figures and sometimes a bigger tax bill than necessary.

Avoid it by:

• Doing a proper stock take before year-end

• Recording any damaged, lost, or obsolete stock

• Using inventory software if you carry a lot of items

6. Forgetting About Directors’ Loan Accounts

This one catches many limited company owners out. If you’ve taken more money out of the business than you should have, your directors’ loan account might be overdrawn, and that can trigger extra tax.

Avoid it by:

• Checking your loan account regularly and not at the last minute

• Running a year-end forecast

• Talking to an accountant about the best way to clear or reduce any balance

7. Not Planning for the Tax You’ll Owe

Tax bills shouldn’t be surprises, but they often are. Many business owners underestimate their January payments or forget about payments on account.

Avoid it by:

• Setting aside tax monthly

• Asking your accountant for an estimate before year-end

• Reviewing whether your income level means payments on account will rise or fall

8. Not Asking for Help Early Enough

The biggest mistake…waiting until something becomes a problem before asking for support.

Year-end should feel manageable, not stressful. If you’re unsure how to prepare, what you can claim, or whether your accounts are accurate, that’s exactly what we’re here for.

Need help getting organised before year-end?

We keep things simple and straightforward. Whether you need help tidying up your books or want a year-end review to make sure everything is in order, we’re here to make the process easy and stress-free. Just get in touch, and we’ll be here to help.