Comment Magazine Issue 7
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HOMES UNDER<br />
THE HAMMER<br />
Buying at auction<br />
POWERS OF<br />
ATTORNEY<br />
Are they open to abuse?<br />
READY TO SELL?<br />
Preparing to sell<br />
a business<br />
CITY OF ART<br />
Brighton and Hove<br />
Arts Council<br />
<strong>Comment</strong><br />
ISSUE 7<br />
The craft beer<br />
revolution<br />
Fallen Acorn Brewery on the rescue of a much-loved<br />
local brewery and producing great beers.
<strong>Issue</strong> 7<br />
Welcome to <strong>Comment</strong><br />
in this issue...<br />
Miles Brown<br />
CEO<br />
Coffin Mew LLP<br />
milesbrown@coffinmew.co.uk<br />
023 9238 8021<br />
It’s been a very busy second half of the year for Coffin Mew, with many exciting<br />
new developments and opportunities. Our new Thames Valley offices successfully<br />
gained their first Lexcel accreditation – the legal kite mark for quality only held by<br />
16% of law firms.<br />
We welcomed two new Partners and announced the imminent arrival of a third.<br />
Alexander Wood joined as Partner in our growing Insolvency & Restructuring team,<br />
Dominic Travers joined our Corporate team and Julie-Ann Harris will shortly join our<br />
Family team. We also celebrated six senior level promotions.<br />
On 20 October, we held a firm wide event to launch our exciting new strategy –<br />
Our Path to 2020: To bring the best people and innovation together to deliver great<br />
results for every client. The purpose of the event was not only to talk about the vision<br />
and strategic plan, but also to bring everyone together from the Thames Valley and the<br />
South Coast offices and to support our firm’s charity CoppaFeel!, appropriately fitting<br />
on wear it pink day.<br />
We were delighted to raise £1,750 for CoppaFeel!, collecting old £1 coins, sponsoring<br />
runners at the Great South Run and making a firm donation for the incredible 82%<br />
response rate to our workplace survey.<br />
Throughout the year there have been many other amazing charitable feats with<br />
Linden Talbot cycling from Paris to Brighton and Justin White climbing volcanoes in<br />
the Arctic Circle raising an incredible £3,000 for St Wilfrid’s hospice – truly courageous<br />
efforts!<br />
Finally, with great sadness we announced the retirement of our Chairman, Nick<br />
Gross after 34 years at the firm. Nick will retire in April 2018 and will focus on his love<br />
of fitness: marathons, triathlons and training for his legacy event in 2018 - The Gross<br />
Challenge. I feel privileged and proud to have worked with Nick. Without him this<br />
firm wouldn’t be where it is today, but we have a great team in place to drive this firm<br />
forward and Nick will aid and assist with the firm’s future merger plans. “You haven’t<br />
seen the last of me yet,” he jokes!<br />
06 From fallen acorns, mighty<br />
beers grow<br />
<strong>Comment</strong> meets Fallen Acorn Brewery.<br />
08 Homes under the hammer<br />
Buying a home at auction can land<br />
you a bargain, but it pays to do your<br />
homework first.<br />
04 Insight<br />
News and updates from Coffin Mew.<br />
10 A champion for<br />
amateur artists<br />
The Brighton and Hove Arts Council<br />
champion and celebrate a vibrant<br />
arts scene.<br />
12 What can businesses learn<br />
from Toblerone?<br />
Changes to a product mean<br />
updating intellectual property<br />
protections.<br />
14 All power to powers<br />
of attorney<br />
Beware abuses of Powers of Attorney.<br />
16 How to prepare your business<br />
for sale<br />
A guest article from BCMS.<br />
18 Employing foreign workers<br />
now and in a post-Brexit<br />
world<br />
Practical considerations for<br />
businesses.<br />
20 Separation agreements –<br />
an alternative to divorce<br />
The end of a marriage need not<br />
always end in divorce.<br />
22 Moving beyond the narrow<br />
lens of gender pay reporting<br />
All organisations with more than<br />
250 employees need to report on<br />
the pay gap between its male and<br />
female employees.<br />
We hope you enjoy this edition of <strong>Comment</strong>.<br />
@coffin_mew<br />
<strong>Comment</strong> is written and published by Coffin Mew LLP.<br />
Special thanks to Wildfire Creative & Marketing Ltd and<br />
Coast Communications.<br />
For further information about <strong>Comment</strong>, please contact<br />
Kirsty Hughes on kirstyhughes@coffinmew.co.uk or call<br />
023 9238 8021.<br />
© Copyright 2017. All Rights Reserved. Coffin Mew LLP.<br />
Disclaimer: This information has been prepared by<br />
Coffin Mew LLP as general guidance only and does not<br />
constitute legal advice on any specific matter and should<br />
not be relied upon as such. No liability can be accepted<br />
by Coffin Mew LLP for action taken or not taken as a<br />
result of this information. Coffin Mew LLP is a limited<br />
liability partnership in England and Wales (registered<br />
number OC 323868) which is authorised and regulated<br />
by the Solicitors Regulation Authority (registered number<br />
463138). Lexcel Accredited.<br />
2<br />
3
Insight<br />
Iceland’s volcanoes no obstacle<br />
for Coffin Mew’s Justin White<br />
Coffin Mew’s Justin White has raised over £3,000 for a Chichester<br />
hospice, climbing three of Iceland’s highest volcanoes in just four days.<br />
To mark his 50th birthday, Justin, a<br />
business development manager for<br />
Coffin Mew’s growing real estate and<br />
residential property practice, set himself<br />
the unusual and gruelling challenge<br />
raising much needed funds for St<br />
Wilfrid’s Hospice.<br />
The challenge saw Justin conquer<br />
the still active Eyjafjallajökull, which in<br />
2010 erupted with devastating effect<br />
grounding airlines around the globe,<br />
battle temperatures falling well below<br />
freezing, traversing glaciers and a climb<br />
to 1,700 metres in knee-deep snow.<br />
“I have always been a keen hill walker,<br />
and would regularly spend time walking<br />
the South Downs,” said Justin. “With a<br />
Coffin Mew’s quality kitemark<br />
Coffin Mew’s Thames Valley<br />
offices have been awarded<br />
the coveted and prestigious<br />
Lexcel accreditation. The Lexcel<br />
kitemark is a standard of quality<br />
and excellence in client care and<br />
practice management that is<br />
assessed and awarded by The<br />
Law Society. Just 16% of law<br />
firms in the UK meet its high and<br />
exacting standards.<br />
To achieve this standard so<br />
soon after Coffin Mew’s merger<br />
with Charles Lucas & Marshall<br />
makes it even more impressive.<br />
The independent assessor was<br />
so taken with the scale of positive<br />
change at the firm’s offices that<br />
she made a point of highlighting<br />
how impressed she was with<br />
how far the staff had all come in<br />
such a short space of time.<br />
Bringing you the latest news from Coffin Mew<br />
milestone birthday on the horizon a new<br />
and tougher challenge was needed. It<br />
was a friend that recommended Iceland<br />
and its volcanoes.<br />
“Iceland is a stunning country and a<br />
true wilderness and that made for some<br />
tough walking. The climb to the summit<br />
of Eyjafjallajökull took 13 hours and<br />
involved walking in complete darkness<br />
and blinding sunlight, whilst walking<br />
across snow and ice. The final 600<br />
metres took over two hours checking<br />
constantly for ravines and crevasses. It<br />
was harder than I had imagined and a<br />
truly memorable experience.”<br />
Justin has now developed a taste<br />
for tough challenges, and is currently<br />
Miles Brown, CEO, said: “I am<br />
thrilled that the Thames Valley<br />
offices have successfully met the<br />
Lexcel standard. This has been a<br />
fantastic effort by all of the staff in<br />
the region. In a merger situation,<br />
an assessor will always want to<br />
examine how that process has<br />
gone and what lessons can be<br />
learnt. We should all be very<br />
proud of what we have achieved<br />
and must now focus on realising<br />
the full potential of the merged<br />
firm, having shown what we can<br />
achieve by working together.”<br />
4<br />
Top insolvency and<br />
restructuring lawyer<br />
joins Coffin Mew<br />
Coffin Mew is delighted<br />
to announce that renowned<br />
insolvency and corporate<br />
restructuring lawyer<br />
Alexander Wood has joined<br />
the firm as a partner.<br />
Alexander joins the<br />
firm from the London<br />
office of Michelmores and<br />
brings more than 15 years’<br />
experience on advising<br />
businesses in the renewable<br />
energy, financial services,<br />
healthcare, property, retail,<br />
leisure and manufacturing<br />
sectors on complex<br />
transactions in the UK and<br />
overseas.<br />
exploring a trek across the Sahara<br />
Desert, canoeing across the English<br />
Channel or perhaps a hike up Mount<br />
Kilimanjaro.<br />
Justin would like to thank friends,<br />
family, colleagues at Coffin Mew, Choice<br />
Financial Solutions, Owl Architects and<br />
Jeffries Estate Agents for their support.<br />
Miles<br />
Brown,<br />
CEO,<br />
said:<br />
“We are delighted to have<br />
appointed such a<br />
high-profile partner.<br />
We have seen an<br />
increase in enquiries<br />
regarding insolvency<br />
and restructuring and<br />
Alexander’s expertise is in<br />
high demand. He will be<br />
a valuable addition to the<br />
team and we look forward<br />
to developing this side of<br />
the business as part of our<br />
ambitious growth plans.”<br />
A finger on the business pulse<br />
Coffin Mew is a law firm with its finger on the business pulse. Every year we ask businesses in Brighton,<br />
along the South Coast and in the Thames Valley for their views on business confidence, opportunities<br />
and threats. <strong>Comment</strong> magazine compares the findings from across the region.<br />
Are you feeling more or less confident<br />
about the prospects for your business<br />
than you were 12 months ago?<br />
Brighton<br />
South Coast<br />
Thames Valley<br />
Brighton<br />
South Coast<br />
Thames Valley<br />
More<br />
confident<br />
Less<br />
confident<br />
Will you be increasing or<br />
decreasing the number of<br />
staff you employ over the<br />
next 12 months?<br />
Increase<br />
Stay the<br />
same<br />
What do you foresee as being the biggest<br />
hindrance to the UK in the next 12 months?<br />
Government<br />
policy<br />
Brexit<br />
Interest<br />
rates<br />
Inflation<br />
Lack of<br />
funding<br />
74 % 7 %<br />
Brighton<br />
0 % 55 % 4 % 4 % 15 %<br />
72 % 14 % Thames Valley<br />
37 % 13 % 12 % 26 % 12 %<br />
65 % 29 %<br />
South Coast<br />
4 % 56 % 4 % 8 % 12 %<br />
Which of the following will you be looking to do in the next 12 months?<br />
Brighton<br />
South Coast<br />
Thames Valley<br />
Recruiting<br />
14 % Seeking<br />
investment<br />
Opening<br />
offices<br />
Introducing<br />
new products<br />
43 % 74 % 14 % 0 %<br />
31 % 46 % 8 % 58 %<br />
17 % 55 % 14 % 45 %<br />
Exporting<br />
4 %<br />
5 %<br />
45 % 48 %<br />
47 % 43 %<br />
75 %<br />
Decrease<br />
7 %<br />
10 %<br />
25 % 0 %<br />
What changes do you think could be made<br />
to attract more businesses into the area?<br />
Brighton<br />
• Stop brain drain<br />
to London<br />
• More affordable<br />
housing for young talent<br />
Thames Valley<br />
• Greater levels of quality<br />
commercial property to<br />
aid expansion<br />
South Coast<br />
• Improve road network<br />
• Regenerate waterfront areas<br />
• More business forums to connect and support business leaders<br />
• Support from local government<br />
5
From fallen acorns,<br />
mighty beers grow<br />
A little over a year ago, much loved Hampshire<br />
brewer Oakleaf Brewery hit hard times and<br />
was facing collapse. It was rescued by local<br />
entrepreneurs Dan Richards and Matt Curd<br />
together with Just Develop iT, and Fallen Acorn<br />
Brewery was born. <strong>Comment</strong> joined them for<br />
a pint of its award-winning Hole Hearted.<br />
The number of breweries in the UK<br />
is, according to the Campaign for<br />
Real Ale (CAMRA), at its highest since<br />
the 1930s. The craft beer movement<br />
is gathering real pace, with beer<br />
connoisseurs today able to choose<br />
from a staggering variety of beers<br />
from more than 1,700 breweries<br />
across the UK. There is, quite literally,<br />
a beer for every occasion and every<br />
excuse to raise a glass.<br />
Gosport’s new beer on the block,<br />
Fallen Acorn Brewery, has strong roots<br />
in the region having risen from the<br />
financial ashes of the much loved<br />
Oakleaf Brewery in 2016.<br />
“Oakleaf Brewery had been brewing<br />
some terrific beers for over 10 years<br />
in Gosport when it found itself in<br />
financial difficulties,” explains Matt<br />
Curd, Fallen Acorn’s Managing Director<br />
and part of the team at technology<br />
company Just Develop iT. “As a<br />
dedicated fan of its beers, it would<br />
have been a real shame to let it and its<br />
talented team just disappear.”<br />
“Just Develop iT invest in a wide<br />
portfolio of businesses outside of the<br />
tech sector,” explains Dan Richards,<br />
Chief Operating Officer at Just<br />
Develop iT and a director at Acorn,<br />
“and we thought it would be pretty<br />
cool to own a brewery.”<br />
Matt and Dan after much<br />
discussions with the administrators of<br />
Oakleaf Brewery and examining the<br />
numbers discovered a business that<br />
had promise and on which they could<br />
build. They successfully managed<br />
to buy the assets of the brewery and<br />
were able to keep its talented head<br />
brewer, Ed Anderson, and its threestrong<br />
team together, relaunching<br />
in the summer of 2016 as the Fallen<br />
Acorn Brewery.<br />
The brewery, with a small tap room,<br />
is on Clarence Wharf Industrial Estate<br />
in Gosport, with terrific waterfront and<br />
harbour views.<br />
Its beers are created by true<br />
craftsmen and with real passion,<br />
underpinned by a strong commercial<br />
discipline. The brand has been<br />
refreshed, and the team has been<br />
bolstered to include an assistant<br />
brewer and a sales team, all led by<br />
experienced businessman Matt Curd.<br />
“I have spent my career in a number<br />
of different sectors leading sales,<br />
marketing and customer services<br />
teams,” says Matt. “With the support<br />
and guidance from Dan, we are<br />
building a brewing business that<br />
has firm financial footings that will<br />
secure its long-term future creating a<br />
platform for growth.”<br />
Today, Fallen Acorn is producing<br />
some 5,000 litres, or over 8,700 pints<br />
of beer a month, supplying pubs and<br />
micro-pubs and beer festivals across a<br />
40-mile patch. Its stable of five beers<br />
are sold in cask, keg and in bottles.<br />
And within its first year, the Great<br />
British Beer Festival held at Olympia<br />
every year invited the brewery<br />
to include its Black Hearted beer<br />
amongst the country’s best. “It is<br />
almost unheard of for a brewery in<br />
its first year to be invited to join the<br />
Great British Beer Festival as they tend<br />
only to focus on the more established<br />
brewers,” says Dan. “We knew we were<br />
on to something good.”<br />
“The boom in micro-pubs and the<br />
resurgence of craft beers has created<br />
a real and sustained demand for our<br />
beers,” adds Matt, “and we believe<br />
we can grow this substantially over<br />
the next few years. We can push<br />
our geographic boundaries further,<br />
and introduce new beers. We are<br />
currently exploring more bottled<br />
beers, which would open up the<br />
supermarkets. We are also considering<br />
opening our own pubs at some point<br />
too.”<br />
One area of growth is from its<br />
almost unique ‘pilot brewery’ that<br />
allows Fallen Acorn to experiment<br />
creating small batch and specialist<br />
beers.<br />
The pilot brewery – effectively<br />
the dream home-brew kit – allows<br />
Matt and his team to create up to<br />
80 pints of beer trying new flavours,<br />
celebratory and seasonal beers<br />
(eggnog stout anyone?), and one-offs<br />
for individual pubs or the ultimate<br />
party or wedding bar.<br />
“Head brewer Ed and assistant Miki<br />
are hugely talented and can spend<br />
time with you crafting a beer for every<br />
occasion,” explains Matt. “We have<br />
had stag parties creating beer for the<br />
groom’s wedding day through to beer<br />
festivals creating their own festival<br />
ale. It allows us to create some truly<br />
special beers that may make regular<br />
appearances and even a best seller.”<br />
But perhaps one of the biggest<br />
reasons to celebrate the success of<br />
Fallen Acorn Brewery is the fact that<br />
it has managed to keep its talented<br />
and dedicated team together whilst<br />
creating new jobs at the same time.<br />
Now that is reason to celebrate.<br />
Cheers.<br />
To find out more about Fallen Acorn<br />
Brewery, to visit the tap room or to<br />
order its beers visit<br />
www.fallenacornbrewing.co<br />
THE FALLEN<br />
ACORN BEERS<br />
Hole Hearted<br />
Originally brewed for the Hole in<br />
the Wall pub in Portsmouth. Five<br />
times Hampshire Beer of the Year.<br />
Expedition IPA<br />
A classic pale ale with complex<br />
citrus and grapefruit notes.<br />
Twisted Oak<br />
Malty with a long hoppy finish.<br />
A great session beer.<br />
Black Hearted<br />
The rebel twin and a dark version<br />
of Hole Hearted.<br />
Double Tide<br />
A craft and refreshing pilsner<br />
6<br />
7
Homes under<br />
the hammer<br />
Buying a house at auction can land you a bargain, but it<br />
always pays to do your homework first, says Ian Peach.<br />
require mortgage finance it is essential<br />
to get ahead of the game and ensure<br />
the funds are available in time for<br />
completion.<br />
Do not assume that your conveyancer<br />
can comply with the multitude of<br />
obligations imposed upon them by<br />
your lender as there can be factors<br />
beyond the conveyancer’s control that<br />
impact upon the ability to draw the loan<br />
on your behalf in time. A good rule of<br />
thumb is to ensure your liquidity for the<br />
purchase monies before you enter the<br />
auction room on the day you intend to<br />
bid. The speed of completion is part of<br />
the attraction of buying at auction, but<br />
is also the downfall of many.<br />
Remember also that lenders will want<br />
to value a property themselves before<br />
agreeing to a mortgage, and that too<br />
can cause delay.<br />
The consequences for failing to<br />
complete upon a winning bid can be<br />
serious. It is likely you will forfeit your<br />
deposit and you will also risk a claim<br />
for damages from the seller under the<br />
terms of the sale contract you have<br />
entered into.<br />
4. View and inspect the property<br />
Something else that may sound<br />
obvious, but we see all too often buyers<br />
buying at auction without even having<br />
first viewed the property. Make sure you<br />
view the property and are comfortable<br />
with what you are looking to purchase.<br />
If the property needs work, do consider<br />
taking a surveyor or builder with you to<br />
provide advice and cost estimates.<br />
Viewings will usually be conducted by<br />
the auctioneers. This provides you with<br />
the opportunity to put questions to<br />
them and for them to recognise you as a<br />
serious buyer.<br />
5. Auction legal packs<br />
Properties sold at auction will be<br />
accompanied by an auction pack,<br />
which are usually available in advance<br />
of the sale. The information in these<br />
packs can vary widely, and it pays<br />
to have your solicitor check them<br />
through, paying close attention to<br />
any special conditions attached to<br />
the contract. For example, it is not<br />
uncommon for the buyer to be<br />
responsible for reimbursing all of the<br />
seller’s costs, and that will need to be<br />
budgeted for.<br />
Some of the more routine property<br />
searches are usually included in the<br />
legal pack, but additional bespoke<br />
searches may need to be completed if<br />
time allows in advance of the auction<br />
date. Some law firms, including our<br />
own, will provide a pre-auction report<br />
upon the legal papers providing the<br />
opportunity for any queries arising to<br />
be raised with the seller’s solicitors in<br />
advance of the auction date.<br />
6. Know your budget – and stick to it<br />
The sale room can be exciting with bids<br />
sometimes coming in thick and fast.<br />
Things can get even more fast moving<br />
when telephone or online bidders are<br />
involved, and in those circumstances the<br />
auctioneer works harder tracking the bids<br />
in the room itself as well as those coming<br />
externally.<br />
When the adrenalin kicks in, it can be all<br />
too easy to get carried away, so our advice<br />
is to set your maximum budget and stick<br />
to it. It’s worth considering bringing a<br />
trusted partner or advisor along with<br />
you on the day itself to rein you in from a<br />
temptation you might regret.<br />
In our experience auctioneers are, in the<br />
main, a friendly bunch and are more than<br />
happy to help and provide some advice.<br />
It is increasingly common for auctioneers<br />
to have their preferred solicitors who are<br />
used to dealing with auction properties<br />
on hand in the sale room to offer more<br />
general advice to buyers and sellers.<br />
Do keep in mind that they cannot offer<br />
advice upon legal packs for any lots that<br />
are being sold on the day.<br />
Contact us direct<br />
Ian Peach<br />
Partner - Head of Residential Property<br />
(South Coast)<br />
023 9236 4313<br />
ianpeach@coffinmew.co.uk<br />
Buying a home at auction is not just<br />
the preserve of the hardened property<br />
investor or developer. Home buyers<br />
looking for a bargain and to buy<br />
and complete in double-quick time<br />
are a common sight in the auction<br />
sale room, but it is not for the feinthearted.<br />
As soon as the auctioneer’s<br />
hammer falls the successful bidder<br />
has contracted to buy the property<br />
and is legally obliged to complete<br />
the transaction in just 28 days. The<br />
parties are at liberty to agree an earlier<br />
completion should they choose.<br />
The key to successfully buying at<br />
auction is preparation and homework.<br />
A good place to start is our step by<br />
step guide.<br />
1. Experience the saleroom<br />
Buying a home at auction is a very<br />
different experience from going through<br />
an estate agent. It can be a fast-paced<br />
environment, with the auction lots<br />
shifting quickly. The auction room can<br />
be an intimidating place for those who<br />
have never experienced it before. My<br />
advice to anyone considering buying<br />
a property at auction would be to visit<br />
some sales before you buy in order to<br />
get a flavour of the atmosphere and the<br />
procedures, as well as to get an insight<br />
into the values of properties being sold.<br />
2. Choose a local auction house<br />
Just like a local estate agent, a local<br />
auction house will provide expert and<br />
invaluable local knowledge. Ask to be<br />
added to their mailing lists for future<br />
sales and obtain sale catalogues. The<br />
sale catalogue is where your buying<br />
journey will begin.<br />
3. Have your finances in place<br />
It sounds a simple and obvious<br />
reminder, but make absolutely sure<br />
you have the funds available at the<br />
time completion falls due. The fall of<br />
the auctioneer’s hammer seals the<br />
contract to buy and at that time a<br />
buyer is required to lodge a deposit<br />
equivalent to 10% of the price of their<br />
winning bid with the auctioneer before<br />
they leave the auction. The remaining<br />
90% falls due at completion, so if you<br />
Fox & Sons property auctions across the South<br />
Fox & Sons Property Auctions cover the South and regularly hold auctions at the<br />
Macdonald Botley Park Hotel in Southampton. Coffin Mew supports Fox & Sons at<br />
some of its auctions in Southampton, providing on-hand advice and guidance to<br />
those buying and selling property.<br />
Whether buying a home, land, letting opportunity, or restoration investment,<br />
property auctions are a busy and exciting place to visit and Fox & Sons make sure<br />
the experience goes as smoothly as possible by giving you all the help you need<br />
under one roof. Year-to-date, Fox & Sons has sold a total of £29,925,000 worth of<br />
property.<br />
Fox & Sons is part of Sequence (UK) Limited, one of the largest national networks<br />
of estate agents throughout the country.<br />
If you are thinking of selling or buying through auction or require professional<br />
help and advice on auctions, please contact their property auction office on<br />
023 8033 8066 or visit www.foxandsonsauctions.co.uk for further information.<br />
2018 Fox & Sons<br />
Auction dates:<br />
9th February<br />
23rd March<br />
4th May<br />
15th June<br />
27th July<br />
14th September<br />
26th October<br />
14th December<br />
8<br />
9
A champion for<br />
amateur artists<br />
The Brighton and Hove Arts Council has for more than 40 years championed<br />
the arts in Brighton and Hove. Artists – whether poets, painters, musicians<br />
or actors – work alongside this important local charity to celebrate a vibrant<br />
amateur art scene and reach out to new audiences.<br />
<strong>Comment</strong> <strong>Magazine</strong> spent the morning with Vaughan Rees, the charity’s vice<br />
chairman and discovered the beating heart of Brighton’s cultural life.<br />
Brighton and Hove is a creative hub<br />
for the arts in the UK. Its eclectic and<br />
diverse arts scene offers something<br />
for everyone – whether it is the large<br />
international blockbusters that come<br />
with the Brighton Festival, first class<br />
music, or the alternative arts and culture<br />
found in the Laines. Self-expression is<br />
what the City does well.<br />
The City’s arts scene runs deep, and it is<br />
its talented and enthusiastic amateurs that<br />
really are its beating heart.<br />
The Brighton and Hove Arts Council<br />
was created back in 1974 by a group of<br />
arts enthusiasts as a charity to support<br />
and promote the not-for-profit and<br />
amateur arts community. Today, the<br />
charity is the first port of call for those<br />
wishing to discover the best music<br />
recitals, performances, poetry recitals and<br />
exhibitions.<br />
“Brighton and Hove is an oddly creative<br />
and vibrant place,” says Vaughan Rees,<br />
long-term Brighton resident and vice<br />
chairman of The Brighton and Hove<br />
Arts Council (BHAC). “There are a lot of<br />
amateur groups that struggle to market<br />
and promote what they do. And that is<br />
where we step in.”<br />
BHAC has over 70 member arts groups<br />
across the City, ranging from amateur<br />
dramatics companies with some 200<br />
members through to water colour<br />
painting clubs with just a dozen or so<br />
members. It also has a growing individual<br />
membership.<br />
The Arts Diary, published in print<br />
and online by BHAC, was one of its first<br />
major initiatives and remains today the<br />
backbone of its activity. It is published four<br />
times a year and lists all of the amateur arts<br />
events happening across the City. Initially<br />
printed on a single A4 sheet with a print<br />
run of 500, the latest edition extends to 36<br />
‘professional quality’ pages and a print run<br />
of 5,000.<br />
“The Arts Diary lists some 200 plus<br />
events in each edition for the months<br />
ahead,” explains Vaughan. “It is where<br />
members turn to promote their events,<br />
and where members of the public<br />
can access Brighton and Hove’s most<br />
comprehensive arts listing. It is as popular<br />
today, both in print and online, as it was<br />
when it was first launched back in 1974.”<br />
BHAC also organises a number of<br />
showpiece events each year. Its annual art<br />
exhibition in the spring continues to grow,<br />
as does its drama awards – “our very own<br />
local Oscars” – held in early December.<br />
“We are thrilled to have the actor Trevor<br />
Jones judge this year’s drama awards,” says<br />
Vaughan. “Trevor has appeared in six West<br />
End productions, at the National Theatre<br />
and in two major Clive Donner movies.<br />
He will watch all of performances and give<br />
creative feedback to all those entering.<br />
He will also hand out our ten awards –<br />
it will be a terrific evening.”<br />
And this year, BHAC has introduced<br />
a one-day Sussex poetry competition<br />
and festival, held in November at the Old<br />
Market in Hove, with a prize of £1,000 up<br />
for grabs for the winning entry.<br />
The Poet-Laureate, Carol Ann Duffy,<br />
was the star attraction and will was joined<br />
by Brighton’s own punk-poet Attila the<br />
Stockbroker and Edinburgh-based John<br />
Samson, a classical and jazz musician<br />
well-known for his collaborations with<br />
poets.<br />
“We are enormously excited by our<br />
first poetry festival,” says Vaughan, “and<br />
judging by the hundreds of entries into<br />
the competition, so too are the residents<br />
of Brighton and Hove. The festival will, I’m<br />
sure, become one of our flagship events.”<br />
BHAC is run by a small committee of<br />
just 10 volunteers, who are responsible for<br />
all the charity’s activities. Funding comes<br />
via modest member subscriptions, a grant<br />
from Brighton and Hove Council and from<br />
sponsorship.<br />
The local business community is<br />
increasingly important to BHAC as a<br />
source of revenue. Local businesses,<br />
including Coffin Mew, sponsor and<br />
support individual events and the Arts<br />
Diary.<br />
“We are a charity and it is important that<br />
we are well-funded and financially secure,”<br />
explains Vaughan. “We are enormously<br />
grateful to the local business community<br />
and will continue to work closely with<br />
them in 2018 and beyond.”<br />
For more information visit<br />
www.bh-arts.org.uk.<br />
The Arts Diary can be found online at<br />
www.bh-arts.org.uk/arts-diary<br />
The Arts Diary<br />
Below is a small sample of some<br />
of the events in early 2018 from<br />
the Brighton and Hove Arts<br />
Council Arts Diary.<br />
Robin Hood<br />
26-28 January and<br />
2-4 February 2018<br />
Lewes Theatre Youth Group<br />
Booking: www.lewestheatre.org<br />
Box office: 01273 474826<br />
‘The Age of Jazz’ Art Deco<br />
Fashion and Style<br />
A talk by Sally Hoban<br />
6 February 2018<br />
The Arts Society Brighton & Hove<br />
Contact: 01273 945407<br />
Brighton & Hove<br />
Russian Choir<br />
A mixed programme of<br />
Russian folk songs<br />
16 February 2018<br />
St. Luke’s Church, BN2 9ZB<br />
Contact: 01273 510595<br />
10<br />
11
What can businesses<br />
learn from Toblerone?<br />
Chocolate lovers everywhere were in uproar earlier<br />
this year when Mondelez International, makers of<br />
Toblerone, changed its shape. Budget high street<br />
retailer Poundland, spotting an opportunity, quickly<br />
launched its own version of the popular chocolate<br />
bar, calling it Twin Peaks. Equally quickly, Poundland<br />
found itself on the wrong end of a legal claim.<br />
There is a valuable lesson that businesses should<br />
learn when changing products, says Emma Stevens.<br />
Mondelez International, the makers<br />
of the Toblerone chocolate bars,<br />
in November 2016 changed the<br />
much-loved shape of its product<br />
from a row of 11 triangular chunks<br />
with distinctive peaks to a row<br />
of nine triangular chunks spaced<br />
further apart. The decision not only<br />
left chocolate lovers angry, it also<br />
left with them with a smaller bar of<br />
chocolate.<br />
Adding further to Mondelez’s<br />
misery, Poundland introduced its own<br />
version of the chocolate bar, called<br />
Twin Peaks, reportedly catering to<br />
a gap in the market created by the<br />
change of the Toblerone. Poundland’s<br />
bar features two rows of two joined-up<br />
peaks instead of one; its packaging<br />
is in red and gold and features two<br />
mountains, reportedly based on the<br />
peaks of the Wrekin Hill in Shropshire.<br />
The Twin Peaks bar was due to be<br />
launched in July, but was delayed<br />
when Mondelez brought a legal<br />
action to protect its intellectual<br />
property in the Toblerone bar.<br />
Mondelez first registered the<br />
distinctive Toblerone shape, with 12<br />
chunks rather than the 11 chunks<br />
sold in the UK since about 2010, as an<br />
EU-trade mark in 1997; the registration<br />
of the shape mark granted Mondelez<br />
the right to take legal action against<br />
anyone who tried to copy the shape<br />
of its Toblerone bar.<br />
It has since been reported that<br />
Mondelez has now issued a claim in<br />
the High Court against Poundland for<br />
damages on the basis of trade mark<br />
infringement of its registered shape<br />
and image marks. Mondelez argues<br />
that the Twin Peaks bar is “deceptively<br />
and confusingly similar” to Toblerone,<br />
in particular on the basis of its shape,<br />
packaging and logo. Poundland has<br />
defended the claim, saying that its<br />
chocolate bar is new and distinctive<br />
from the Toblerone shape.<br />
Interestingly, there may also be<br />
arguments that Mondelez has weakened<br />
its registered mark by changing the<br />
shape of the Toblerone bar.<br />
This is not the first time in recent<br />
years that big brands have made the<br />
headlines in relation to the shapes<br />
of their products, with Nestlé’s<br />
dispute with Cadbury regarding<br />
Nestlé’s attempted registration of<br />
the shape of its KitKat bar. In that<br />
case, the attempted registration<br />
was unsuccessful as the Court of<br />
Appeal found that the shape was not<br />
distinctive enough to be registered<br />
as a trade mark.<br />
What can businesses learn<br />
from Toblerone?<br />
Whilst shape marks have made<br />
the headlines, the range of marks<br />
which can be registered to protect<br />
intellectual property is much wider<br />
including words or phrases (word<br />
marks) and logos (image marks).<br />
With online and real-world<br />
infringement becoming increasingly<br />
common, owners of intellectual<br />
property must take steps to register<br />
and to protect their brands.<br />
Whilst it is possible to take action<br />
against copycat brands if words<br />
and logos are not registered, this<br />
is usually more difficult than if<br />
registrations are in place. The courts<br />
will require a number of elements<br />
to be established which are often<br />
difficult to demonstrate, including<br />
goodwill in the unregistered mark and<br />
a likelihood of confusion between the<br />
unregistered mark and the infringing<br />
one.<br />
When establishing a new product<br />
or brand it is sensible to complete<br />
thorough searches at the outset to<br />
ensure that your intended mark has<br />
not been registered previously and<br />
is not too similar to existing marks;<br />
failure to do this can lead to expensive<br />
litigation in the event that the mark<br />
inadvertently infringes an existing<br />
mark and the previously registered<br />
owner takes action to protect it.<br />
Similarly, ensuring marks are<br />
properly registered at an early stage<br />
can assist in protecting your brand;<br />
where infringement does occur, it is<br />
important to consider taking action<br />
swiftly to ensure that your brand and<br />
intellectual property are not damaged<br />
or devalued.<br />
The same applies following a<br />
rebrand or redesign, as Toblerone no<br />
doubt now recognises.<br />
Contact us direct<br />
Emma Stevens<br />
Associate Solicitor –<br />
Dispute Resolution<br />
023 8057 4303<br />
emmastevens@coffinmew.co.uk<br />
12<br />
13
All power<br />
to powers<br />
of attorney<br />
Former senior Judge Denzil Lush said<br />
this year that he does not wish to grant<br />
a Lasting Power of Attorney (LPA)<br />
appointing others to act on his behalf<br />
in respect of his finances or welfare<br />
should he lose the mental capacity to<br />
do so himself.<br />
Being aware of many of the cases he<br />
has presided over, and indeed acting<br />
on some of them, Annabelle Vaughan<br />
is sympathetic to his view.<br />
The current LPA regime leaves a lot<br />
to be desired. It is open to abuse<br />
and, perhaps more commonly, family<br />
disputes. The biggest mistake people<br />
make is choosing attorneys they think<br />
they ought to appoint rather than those<br />
who would do the job well. Warring<br />
siblings are unlikely to heal their rifts if<br />
asked to decide between themselves<br />
how they spend what would be their<br />
inheritance. Your attorneys should be<br />
people you can trust implicitly to act<br />
in your best interests. Any conflict will<br />
inevitably impair their ability to do so.<br />
There is a lack of routine supervision<br />
over the preparation of Lasting Powers<br />
of Attorney and their operation. Once<br />
an LPA is, at least at face value, executed<br />
correctly and registered there is very little<br />
scrutiny of how the document is used.<br />
LPAs and their predecessor, Enduring<br />
Powers of Attorney, were designed to<br />
give the donor (the person who grants<br />
the power of attorney) control over who<br />
manages their affairs, and it is presumed<br />
that they will choose trustworthy<br />
individuals to do the job. There is no<br />
routine supervision of attorneys by the<br />
Office of the Public Guardian (OPG), the<br />
executive arm of the Ministry of Justice<br />
responsible for their supervision.<br />
It is not safe to assume that third<br />
parties will immediately spot an attorney<br />
acting in a way that is contrary to the<br />
best interests of a donor. A bank will<br />
not query the actions of an attorney<br />
withdrawing large sums of money<br />
provided that they have registered the<br />
power on their system. In fact, most<br />
abuse cases come to light because<br />
care fees or other routine expenses go<br />
unpaid - incidents which take time to get<br />
attention.<br />
Many lay attorneys will go along<br />
merrily doing what they think their loved<br />
ones would have wanted rather than<br />
having regard to the law.<br />
There are important legal principals<br />
around how decisions should be made<br />
on behalf of people who lack capacity. A<br />
member of the public once told me he<br />
wouldn’t be told how to run his mother’s<br />
affairs under an LPA. When I said “yes, but<br />
I’m sure you will adhere to the principals<br />
of the Mental Capacity Act,” he fell rather<br />
silent. I didn’t say this to be unkind - there<br />
is enough onus on would-be attorneys<br />
to demonstrate that they have read or<br />
understood the law that they should act<br />
under.<br />
The OPG will investigate once a<br />
concern is raised, but these investigations<br />
can take time and it is not unusual that<br />
the donor’s assets are exhausted by<br />
the time an investigation is concluded.<br />
Remedies may include closer supervision<br />
of the attorney or an application to the<br />
Court of Protection to appoint a deputy<br />
in the stead of the attorney.<br />
If you do not make an LPA and lose<br />
capacity, then the Court of Protection<br />
will appoint a deputy to make decisions<br />
about your finances or welfare. This<br />
offers a far more robust regime of choice<br />
over the appointed deputy and their<br />
ongoing supervision.<br />
Deputies are required to file annual<br />
accounts and are routinely visited by<br />
OPG caseworkers who check that all<br />
is well. In most cases it will be more<br />
expensive to pursue this route and it is<br />
also important to be aware that the<br />
Court can make orders of its own volition,<br />
and so the obvious candidate may not<br />
be appointed.<br />
A further alternative is to appoint<br />
professional attorneys. Again, this can<br />
be more expensive, but could avoid far<br />
more costly litigation in complex cases<br />
where there are no suitable lay attorneys.<br />
Ultimately, whether or not to have<br />
LPAs will be a matter of personal choice.<br />
However, this decision should not be<br />
arrived at lightly or through a sense of<br />
obligation.<br />
Annabelle<br />
Vaughan’s<br />
top tips<br />
• Think carefully about who you<br />
appoint as your attorneys. If you<br />
can foresee problems with your<br />
chosen attorneys either think again<br />
or try and air a grievance to see if it<br />
can be resolved.<br />
• Read the Mental Capacity Code<br />
of Practice. It is an accessible<br />
document that sets out how<br />
decisions should be made. This<br />
will help you understand how your<br />
attorneys should act and whether<br />
an LPA is right for you, and them.<br />
• It is possible to put guidance and<br />
instructions for your attorneys in an<br />
LPA, but do bear in mind that they<br />
will need to act in your best interests<br />
if you lack capacity in the future.<br />
Think about how you would want to<br />
be treated in those circumstances<br />
rather than imagining yourself as fit<br />
and healthy in a care setting.<br />
• Instructions to your attorneys are<br />
binding and so need to be drafted<br />
carefully. The OPG will delete any<br />
instructions that are unworkable,<br />
so you should take legal advice if<br />
including instructions. You cannot<br />
instruct your attorneys to do<br />
something unlawful in the UK, such<br />
as arrange for euthanasia on your<br />
behalf.<br />
• Think about when you want<br />
your LPA to be used. You must be<br />
mentally incapable for a Health<br />
and Welfare LPA to be used, but<br />
your attorneys can assist you with<br />
your finances under a Property and<br />
Affairs LPA if you are infirm. In<br />
these circumstances, your attorney<br />
will clearly need to be someone who<br />
respects your autonomy and ability<br />
to make decisions to instruct them.<br />
Contact us direct<br />
Annabelle Vaughan<br />
Partner - Head of Court of Protection<br />
& Wills, Trusts & Probate<br />
023 9236 4312<br />
annabellevaughan@coffinmew.co.uk<br />
14<br />
15
Very few business owners choose to start and build companies purely for the<br />
fun of it. For most, the whole point is to turn all that hard work into money<br />
at some point. But getting the best outcome from any eventual business sale<br />
depends largely on what you do in the run-up to sale. With the benefit of more<br />
than 600 successful company sales in the last decade alone, BCMS has identified<br />
the top 10 areas for your business to focus on.<br />
How to prepare<br />
your business<br />
for sale<br />
Even if you aren’t ready to sell your business<br />
yet, there’s plenty you can do to prepare for<br />
your eventual exit. BCMS Executive Director<br />
Jonathan Dunn explains.<br />
Shareholding structure<br />
Check your current company and<br />
management structure is fit for purpose.<br />
Refresh your corporate governance to<br />
ensure it sets boundaries while remaining<br />
flexible enough to work alongside an<br />
ambitious growth plan. Then get a lawyer<br />
to help you simplify your shareholding<br />
structure.<br />
Investment cycle<br />
If turnover is flat-lining, it’s likely that the<br />
business requires additional investment. If<br />
the increased costs and risks required are<br />
getting beyond your comfort zone, this<br />
starts to set a timescale for finding and<br />
securing further external investment.<br />
Funding levels<br />
To fund your next business growth<br />
stage, smaller firms often turn to invoice<br />
discounting – a useful method of<br />
releasing some of the in-built value in<br />
the business. For more ambitious plans,<br />
such as premises expansion or new<br />
equipment, commercial loans are a<br />
popular route. Finally, if your business is<br />
generating upwards of £2m in annual<br />
profit, private equity is increasingly<br />
popular for a mix of loan and equity<br />
funding. Consider how these will impact<br />
on profit margins, and to help time any<br />
shareholder exit.<br />
Management team<br />
If you are growing to sell, consider what<br />
incentive the management team has to<br />
deliver that growth plan. Unless there is<br />
a management buyout on the horizon,<br />
you should consider bringing in a bonus<br />
structure or a tax-efficient share incentive<br />
scheme.<br />
Corporate acquirers and investors will<br />
want to know who’s going to run the<br />
business post-sale. Therefore, it is even<br />
more important for owner-managers<br />
to take a step back from the day-to-day<br />
running of your business, so tying this<br />
together with empowering your senior<br />
managers gives you a stronger hand<br />
when you come to exit.<br />
Processes and procedures<br />
It may seem dull, but all genuine investors<br />
and acquirers put a great deal of focus<br />
closely on regulatory compliance, and any<br />
breach of legislation can see valuations<br />
reduce or an offer withdrawn completely.<br />
Organise a compliance audit early to<br />
avoid future issues arising during the sale<br />
process.<br />
Products and services<br />
Who owns the rights to your products<br />
and services is a key question during a<br />
sale process, and not as straightforward<br />
as it may seem. If you have used a third<br />
party developer or consultant, you may<br />
not own all the relevant intellectual<br />
property rights. This may lead to lengthy<br />
negotiations – and probably a payout – to<br />
assign the rights to your business in all<br />
past and future work.<br />
As part of this exercise, you will also<br />
gain a deeper understanding of what<br />
advantages you have over competing<br />
products or services, and can take steps<br />
to develop these further and protect that<br />
knowledge.<br />
Overseas expansion<br />
This is a huge step for most business<br />
owners, as internationalising your<br />
business can have wide-ranging<br />
and complex legal, financial and tax<br />
implications. You will need a robust<br />
corporate structure that works across all<br />
territories to ensure the business is easy<br />
to transfer to new ownership at a future<br />
date.<br />
Acquisition strategy<br />
It may sound counter-intuitive to buy<br />
companies in order to sell yours, but it<br />
is often a faster route into a new market<br />
than starting out from scratch, while<br />
making your business more appealing<br />
when you come to sell.<br />
Putting together an acquisition strategy<br />
involves setting your criteria, deciding<br />
how to fund deals, and understanding<br />
the integration and culture fit issues.<br />
Timescales<br />
Work out milestones for your growth plan,<br />
including what to do if growth does not<br />
occur in line with expectations. From this,<br />
you can work out a good time to hand<br />
over the business to new ownership.<br />
Exit routes<br />
Businesses change hands in several<br />
guises, including part-sale, management<br />
buyout, flotation or trade sale. Your exit<br />
options will depend on the size and<br />
market positioning of your business, as<br />
well as your personal reasons such as<br />
work-life balance, retirement or financial<br />
exposure.<br />
It goes without saying that many<br />
of these areas involve getting expert<br />
advice, which can be expensive. But this<br />
preparation makes a huge difference in<br />
a business sale – not only on the price<br />
and terms you want, but also significantly<br />
improving the chances of a deal<br />
happening at all.<br />
Jonathan Dunn is Executive Director<br />
at leading business sale advisor BCMS.<br />
Founded in 1989, BCMS has helped sell<br />
more than 600 private companies in<br />
the last decade alone. The firm has 260<br />
professionals, and is headquartered near<br />
Basingstoke. See BCMS.com for more<br />
insights on business sales.<br />
16<br />
17
Employing foreign workers<br />
now and in a post-Brexit world<br />
Charlotte Allery outlines the key practical considerations for business and<br />
family employers taking on foreign workers in the UK and considers the<br />
unknown post-Brexit landscape.<br />
The ease of travel and mobility means<br />
that the world has become a smaller<br />
place and businesses are seeing an<br />
increasing number of foreign applicants.<br />
With skills shortages in most sectors<br />
and an ever-globalising world, many<br />
employers value these overseas workers<br />
with the knowledge and skills they can<br />
bring.<br />
Whilst foreign workers can be a valuable<br />
addition to any business, employers need<br />
to bear in mind their legal obligations.<br />
Recent figures from the Home Office reveal<br />
that getting it wrong can be an expensive<br />
mistake, with £10.5m in penalties being<br />
issued to employers with illegal workers<br />
between 1 January and 31 March 2017.<br />
Right to work in the UK<br />
All employers, irrespective of size or<br />
sector, are required to prevent illegal<br />
working in the UK by confirming that<br />
all potential employees and workers are<br />
entitled to work in the UK.<br />
Employers that fail to adequately carry<br />
out a right to work check and employ an<br />
illegal worker can face tough sanctions,<br />
including a penalty of up to £20,000 per<br />
illegal worker. It is also a criminal offence<br />
to knowingly employ someone who<br />
does not have the right to work in the<br />
UK, which can result in a prison sentence<br />
of up to five years and an unlimited fine.<br />
These checks involve following<br />
three steps for each worker:<br />
1. Obtaining specific original documents<br />
as specified by the Home Office, such<br />
as a British passport;<br />
2. Checking the validity of the<br />
documents in the presence of<br />
the worker; and<br />
3. Making and retaining a clear copy,<br />
together with the date of the check.<br />
We recommend that offers of<br />
employment are made conditional on<br />
the individual’s eligibility to work in the<br />
UK being satisfied and, if you are in any<br />
doubt about an individual’s right to work<br />
in the UK, seek legal advice or contact the<br />
Home Office directly before employing<br />
the individual.<br />
Employment rights<br />
Foreign employees working for<br />
employers in the UK will be entitled<br />
to the same employment rights as UK<br />
citizens, such as the National Minimum<br />
Wage, paid annual leave and protection<br />
from discrimination.<br />
However, employers should be<br />
mindful that some foreign workers may<br />
be restricted on the number of hours<br />
they can work, in what capacity and for<br />
what period. Information on restrictions<br />
can be ascertained from an applicant’s<br />
documentation, such as a visa. Further<br />
information should be sought from the<br />
Home Office if there is any uncertainty.<br />
Avoiding discrimination claims<br />
Whilst employers are, of course, entitled<br />
to recruit the best candidates for a<br />
job, race, nationality or ethnicity of a<br />
candidate should not be a factor in the<br />
recruitment process. Race is a protected<br />
characteristic under the Equality Act<br />
2010, meaning that an individual will<br />
have a claim for discrimination if they<br />
have been treated less favourably on the<br />
basis of their race or nationality.<br />
Employers should ensure that they<br />
are carrying out right to work checks<br />
consistently for all potential employees.<br />
Remember not to make any assumptions<br />
about a person’s immigration status on<br />
the basis of their race, nationality, ethnic<br />
origins, accent or the length of time they<br />
have been resident in the UK. A blanket<br />
policy of only carrying out right to work<br />
checks on individuals who appear to<br />
be ‘foreign’ is likely to lead to claims of<br />
discrimination.<br />
What about the self-employed?<br />
Whilst the legal obligation to carry out<br />
right to work checks will not apply to<br />
any self-employed contractors<br />
you engage, there are compelling<br />
commercial reasons for carrying out<br />
such checks. In the event that the<br />
individual’s self-employed status is<br />
challenged and they are found to<br />
instead be an employee or worker,<br />
you will have already complied with<br />
your legal obligations in respect of<br />
immigration checks.<br />
Further to this, if an illegal worker is<br />
removed from your business, it may<br />
disrupt your operations and could cause<br />
widespread reputational damage. From a<br />
risk management perspective, the illegal<br />
status of your contractors or consultants<br />
may also result in an invalidation of<br />
any insurance you hold, such as public<br />
liability insurance.<br />
What if I employ foreign nationals in<br />
my home?<br />
Where you employ a nanny, carer or<br />
personal assistant to carry out work for<br />
you in your own home, you will need to<br />
comply with your legal obligations as an<br />
employer in the same way as a company<br />
would. As such, you will need to carry out<br />
right to work checks on these individuals,<br />
regardless of their nationality. You will<br />
also need to consider all other usual<br />
employer obligations, such as income<br />
tax and National Insurance deductions,<br />
paying the National Minimum Wage etc.<br />
A post-Brexit world<br />
In the immediate and mid-term<br />
aftermath of the UK’s vote to leave the<br />
EU and Theresa May’s triggering of Article<br />
50, nothing has changed. Employers<br />
should continue to employ EU workers<br />
as they always have done, ensuring that<br />
right to work checks are carried out as<br />
currently stipulated by the Home Office.<br />
However, the long-term impact on the<br />
employment of EU nationals is unclear.<br />
In June this year, Theresa May<br />
confirmed that EU nationals and their<br />
families who have spent five years in<br />
the UK will be able to apply for ‘settled’<br />
status to obtain the same rights as UK<br />
citizens. However, the Government’s<br />
further immigration plans are anything<br />
but settled. In September this year, a<br />
Home Office document leaked to the<br />
press outlined for the first time how the<br />
Government intends to approach the<br />
politically charged issue of immigration.<br />
Whilst the leaked document was in<br />
draft form and has not yet been signed<br />
off by Ministers, it suggests that free<br />
movement of labour will end upon exit<br />
from the EU in March 2019. Among its<br />
82 pages, the document also suggests<br />
that low-skilled migrants will be offered<br />
residency for a maximum of two years,<br />
while those in high-skilled occupations<br />
will be granted permits to work for a<br />
longer period of three to five years. It also<br />
proposes that the UK will adopt a more<br />
selective approach to immigration based<br />
on the UK’s economic and social needs.<br />
The Government has said that it will be<br />
setting out its initial proposals for a new<br />
immigration system later in the autumn.<br />
Whether these leaked ideas are the reality<br />
of the future, and what this ultimately<br />
means for employers relying on EU<br />
labour, unfortunately remains to be seen.<br />
Coffin Mew’s Top Tips<br />
• Don’t forget to carry out right to<br />
work checks on all employees or<br />
workers.<br />
• If you are in any doubt about an<br />
individual’s immigration status,<br />
seek legal advice or contact the<br />
Home Office directly before<br />
employing them.<br />
• If EU nationals you employ<br />
are concerned about their<br />
immigration status, reassure<br />
them that there is no immediate<br />
impact on their employment.<br />
• If you typically employ EU<br />
nationals, keep abreast of the<br />
Government’s immigration plans<br />
post-Brexit.<br />
• If a foreign worker does not have<br />
the right to work in the UK, you<br />
may be able to issue sponsorship<br />
certificates to the individual so<br />
that you can employ them. In<br />
order to do this, you will need<br />
a sponsor licence. Contact UK<br />
Visas and Immigration directly<br />
to confirm your eligibility as a<br />
sponsor and the type of licence<br />
you require.<br />
Contact us direct<br />
Charlotte Allery<br />
Solicitor - Commercial<br />
& Employment Services<br />
023 9236 4310<br />
charlotteallery@coffinmew.co.uk<br />
18<br />
19
Separation agreements –<br />
an alternative to divorce<br />
Relationships do not always pass the test of time,<br />
with the Office for National Statistics reporting that<br />
one in three marriages will end in divorce. The end<br />
of a marriage need not necessarily end in divorce,<br />
with many couples choosing instead a separation<br />
agreement. Bryan Scant explains.<br />
Separation agreements are, in short, like<br />
a contract between a married couple<br />
or those in a civil partnership that sets<br />
out clearly the financial arrangements<br />
and responsibilities of each party. They<br />
remain valid until the couple divorces or<br />
until the relationship is restored.<br />
There are many reasons why a couple<br />
may not wish to divorce immediately<br />
and choose a separation agreement,<br />
including religious reasons, family<br />
pressures and, particularly if parties have<br />
been separated for under two years, the<br />
court’s requirement to apportion blame.<br />
Until government reforms divorce<br />
laws and allows for ‘no fault divorces’,<br />
the only option open to couples<br />
separated under two years is to<br />
apportioning blame where none may<br />
exist. This, understandably, leaves<br />
many couples in short marriages,<br />
who are separating without any<br />
real animosity, in an uncomfortable<br />
position.<br />
A separation agreement will allow a<br />
couple to move on in their lives having<br />
agreed how their assets and financial<br />
responsibilities will be managed.<br />
It will also make any future divorce<br />
considerably easier and cheaper.<br />
Separation agreements can cover a<br />
wide range of matters, including:<br />
• Who will pay the mortgage or rent,<br />
and household bills;<br />
• Who will continue to live in the<br />
family home and what happens if it’s<br />
sold;<br />
• What happens to any debts, such as<br />
loans or overdrafts;<br />
• What happens to savings,<br />
investments and other financial<br />
assets;<br />
• What happens to any items such as<br />
cars or furniture, especially if bought<br />
jointly; and<br />
• Whether maintenance is paid to<br />
support a financially weaker spouse.<br />
Whilst not technically legally binding,<br />
a court case in 2010, known as the<br />
Radmacher case, provided clarity and<br />
legal weight to what the courts call<br />
‘nuptial agreements’, meaning that prenuptial,<br />
post-nuptial and separation<br />
agreements can influence a court’s<br />
decision on divorce settlements.<br />
This means that couples wishing to<br />
create a separation agreement must<br />
do so without any undue influence<br />
from either party, and be prepared<br />
to disclose all of their combined<br />
and individual finances. Separation<br />
agreements must be fair and cannot<br />
leave one party in a financially<br />
disadvantaged position. This will<br />
mean that they will be quite detailed,<br />
addressing every financial aspect of the<br />
relationship.<br />
Whilst it is entirely possible to create<br />
a separation agreement without the<br />
help of a solicitor, perhaps from a free<br />
to download form from the internet,<br />
it is not advisable. For a separation<br />
agreement to have any legal weight,<br />
it is vitally important that each party<br />
takes independent legal advice before<br />
signing the agreement.<br />
If and when a couple eventually seeks<br />
a divorce, the courts will look to the<br />
fairness of the agreement and if they<br />
cannot demonstrate the fairness of the<br />
agreement, the courts can simply ignore it.<br />
It is good practice to keep<br />
arrangements about the care and<br />
access to children outside of a<br />
separation agreement. The courts<br />
will always look to what is in the best<br />
interest and needs of any children from<br />
a relationship at that point in time and<br />
in future years. Separation agreements,<br />
by their very nature, focus on the<br />
financial position of a relationship at<br />
the point of time of separation and<br />
therefore may not adequately address<br />
the needs of any children. It is also<br />
good practice not to combine financial<br />
disputes with child arrangements as<br />
one should not influence the other.<br />
There are some downsides to<br />
separation agreements that couples<br />
should understand before they decide<br />
whether they are the right option for<br />
them.<br />
Separation agreements tend to<br />
be self-policed and work because<br />
the breakdown in the relationship is<br />
largely amicable. However, they can be<br />
difficult to enforce if one party decides<br />
not to abide by its terms, leaving<br />
divorce the only realistic option. An<br />
application to the court is necessary to<br />
begin financial remedy proceedings,<br />
which can be lengthy and costly.<br />
They also do not offer the closure of<br />
a financial settlement approved by the<br />
courts that an order on divorce delivers.<br />
That will mean any such agreement<br />
will need to be revisited from time to<br />
time. And of course, individuals will<br />
remain married which may make future<br />
relationships difficult.<br />
Separation agreements are<br />
increasingly popular, used not as a<br />
long-term alternative to a divorce, but<br />
as a stepping stone towards that final<br />
clean break without the animosity of a<br />
blame based divorce.<br />
Contact us direct<br />
Bryan Scant<br />
Solicitor - Family<br />
023 9236 4954<br />
bryanscant@coffinmew.co.uk<br />
20<br />
21
Moving beyond<br />
the narrow lens<br />
of gender pay<br />
reporting<br />
All organisations with more than 250 employees need to report on the<br />
gap in pay between its male and female employees. It has created for<br />
some organisations, notably the BBC this summer, some awkward<br />
headlines, as Leon Deakin explains.<br />
Following the BBC’s release of its<br />
gender pay figures and the high-profile<br />
claims by Asda retail store workers<br />
seeking to compare their remuneration<br />
to those in the distribution centres,<br />
equal pay has been firmly in the<br />
headlines for the wrong reasons.<br />
Conversely, other companies have<br />
seized the initiative and moved<br />
beyond gender by reporting on<br />
other characteristics such as race and<br />
ethnicity.<br />
Now is, therefore, a good time to<br />
look again at the current gender pay<br />
requirements, but also consider whether<br />
it will become best practice and part of<br />
good risk management to go further than<br />
the law currently requires and report on<br />
other protected characteristics.<br />
As a recap, the requirement from 6 April<br />
2017 was for employers in Great Britain<br />
with more than 250 staff to publish four<br />
different figures annually in relation to the<br />
following:<br />
• Gender pay gap<br />
(mean and median averages);<br />
• Gender bonus gap<br />
(mean and median averages);<br />
• Proportion of men and women<br />
receiving bonuses; and<br />
• Proportion of men and women in each<br />
quartile of the organisation’s<br />
pay structure.<br />
Struggling to close the gap<br />
Gender pay reporting has left some<br />
organisations facing difficult headlines.<br />
Whilst the BBC dominated the news<br />
following the revelation that the highest<br />
paid female earned between £450,000 and<br />
£500,000 compared to the highest paid<br />
male who earnt between £2.2 million to<br />
£2.25 million, it is not alone.<br />
Deloitte recently published a study into<br />
the gender pay gap in the technology<br />
sector in the UK, examining data over<br />
the past 15 years. The study found<br />
that women made up a tiny 14.4% of<br />
workers, ultimately highlighting the<br />
underrepresentation of women in the<br />
sector. The study also forecast the existing<br />
pay gap would not be bridged until 2069.<br />
There are, unsurprisingly, a plethora<br />
of opinions as to why this is the case.<br />
One rather unfortunate now ex-Google<br />
employee’s internal memo made headline<br />
news when he attributed it to inherent<br />
‘biological differences’ and that women’s<br />
biological traits make them less aligned to<br />
become coders at Google.<br />
More encouragingly, some of the<br />
biggest names in the technology sector<br />
have pledged specifically to address this<br />
issue; Virgin Media have gone as far as to<br />
pledge to achieve a 50:50 gender balanced<br />
workforce by 2025.<br />
Getting ahead<br />
An interesting contrast can be seen in the<br />
case of PwC, which gained largely positive<br />
press by taking the gender pay gap<br />
reporting requirements as an opportunity<br />
to get a step ahead and report on other<br />
characteristics such as Black, Asian and<br />
Minority Employees (BAME).<br />
Indeed, even though PwC’s figures<br />
revealed that there is a pay gap between<br />
BAME staff and others, it attributed<br />
this to the fact that, statistically, ethnic<br />
minorities filled the lower paid roles which<br />
unsurprisingly led to a gap between those<br />
at the bottom and top of the pay scale.<br />
PwC’s strategy as a result of their findings<br />
is to retain as many BAME employees at a<br />
junior level to increase diversity across the<br />
business in years to come.<br />
Of course, a more interesting<br />
consideration could perhaps be why BAME<br />
employees are more likely to be employed<br />
at a junior level, but by driving the agenda<br />
at a faster rate than required PwC is more<br />
likely to be able to control it.<br />
All this raises many questions with<br />
potentially difficult answers.<br />
However, for those now required<br />
to report on the gender pay gap, it is<br />
absolutely crucial to interrogate the raw<br />
data obtained and consider not just how<br />
to explain or justify the findings to avoid<br />
costly claims, but to actually grasp the<br />
nettle and try and use findings to launch<br />
an effective diversity strategy. This is, by no<br />
means, an easy task, and it may be a wise<br />
investment to take some advice in relation<br />
to how best to do this.<br />
In addition, while it is currently only a<br />
legal requirement to report on the pay gap<br />
in relation to gender, it could be genuinely<br />
beneficial to explore other characteristics,<br />
such as race, ethnicity and, perhaps, even<br />
disability in order to truly understand<br />
diversity in the work place and address the<br />
barriers that prevent people from reaching<br />
their potential.<br />
Going beyond the narrow lens of<br />
gender pay reporting and exploring other<br />
characteristics could assist in achieving<br />
a fairer and more equal work place and<br />
ultimately attract and retain employees.<br />
Contact us direct<br />
Leon Deakin<br />
Partner - Employment<br />
023 9236 4072<br />
leondeakin@coffinmew.co.uk<br />
22<br />
23
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