Newsletter Summer 2006
Welcome to the edition of our newsletter, which is available online at our website and in hard copy on request; please let us know if you would like to receive a copy. Your comments on our newsletter and what you would like to see in it are always appreciated-if you have any comments please email David Vaughan-Birch. The contents of this newsletter are intended for guidance only; if you would like specific advice please contact us.
Service charge increases–how to fight back Unlike residential leases, service charges in commercial Leases are unregulated–so if your Landlord is trying to increase your service charge, get hold of a copy of your lease and see what it says. Often these are complex documents, but usually there will be phrases such as “reasonably incurred”. If so, you can challenge an unreasonably high service charge at Court. If a Landlord is demanding a contribution towards re-painting for instance, get hold of the copy invoices and get some alternative quotes to assist you in proving your case.
Computer crime–how safe are you? Recent research has shown many small to medium sized enterprises could face a major problem if they were the victim of computer fraud, and many have no strategy in place to cope with this. The threat may not come from external hackers–a departing employee could easily download a great deal of confidential company information onto an easily transportable pen-style hard drive. As a first step, Business Link at www.businesslink.gov.uk has developed a range of help sheets to assess your need for action. You should also look at your terms and conditions, and ensure that firstly you have confidentiality clauses that can be enforced and secondly that misuse of Company IT systems is a serious disciplinary issue.
New fire legislation-this means you! Radical changes to fire safety law will be implemented on 1 October 2006 which will have implications for all businesses in England and Wales. It puts the onus for fire risk assessment firmly onto businesses and away from local fire officers. Instead of a fire safety certificate, a responsible person must carry out a fire safety risk assessment and if you have more than 5 employees you need to write down and keep a record of that assessment. If you lease your premises, you must also work with the Landlord, and your assessment must focus on the safety in the case of fire of ‘all relevant persons’ in particular those at special risk such as the disabled and those with special needs. However, if your Company is based at your home, the rules do not affect you. Bear in mind that insurance companies may ask to see your fire assessment, and although the new rules do not come in until October, the penalties for non-compliance can be severe. A Company was recently ordered to pay nearly £18,000 in fines and costs after breaches of fire regulations.
Are directors liable for faulty equipment? There have been many recent high-profile cases where directors of large companies escaped personal liability for workplace fatalities, because the prosecutors have been unable to establish who was “the controlling mind” of a business. A small company will not get away so lightly! In 2004, the Director of a small company was prosecuted for breaches of the Health and Safety at Work Act, breaches of the Provision of Work Equipment Regulations and with manslaughter following the death of one of their employees while using defective equipment. The Director was found guilty of manslaughter and was sentenced to 18 months imprisonment. To protect yourself, ensure all equipment is used is suitable, no modifications are made without the manufacturer’s approval, and that all maintenance checks are not only carried out but also recorded. Make sure you have a clear maintenance/defect reporting procedure and that all employees use it-punishable as a disciplinary issue if they do not.
Can you change an employee’s job description? A well-drafted contract allows you to change an employee’s terms and conditions to suit your changing business needs. How far can you go? The Employment Appeal Tribunal heard a claim by an employee who said that she has been constructively dismissed after her employer changed her role from that of an architect to simply overseeing a number of consultants. The Tribunal allowed her claim, and held that a flexibility clause requiring her to perform “any duties that may be reasonably required” did not mean that the employer could change her role without considering what a suitable alternative to it might be. In other words, if you do have a flexibility clause, make sure it only encompasses tasks that could reasonably fall within the remit of an individual’s job. A tribunal will interpret flexibility clauses narrowly, and will not allow you to get away with big changes to a job description without the employee’s consent.