Bribery Act 2010 seminar

It has been very interesting to deliver seminars in Aberdeen and Glasgow this month on the implications of the new Bribery Act 2010. It is scheduled to come into force in April 2011 and the Ministry of Justice started consultation on guidance on anti-bribery procedures last week. The new law is set to be on the agenda for all organisations – private, public and third sectors – in the coming months.

What became clear in discussion with delegates at both seminars is that the new Act will, I think, change the perception that corruption is really only a risk for the largest corporates bidding for large, oversea government contracts. Prosecution will also be made significantly easier.

Two new aspects of the law in particular provoked discussion. The first was that people or organisations with a UK association can be prosecuted in the UK for actions carried out exclusively overseas. They will normally be judged by UK standards and not the common practice in the relevant overseas territory. This is likely to present a risk to large numbers of businesses doing business overseas who, for example, reluctantly make “facilitation payments” as it appears to be the only way to do business effectively.

Secondly, if anyone associated with an organisation commits a corrupt act (here or overseas), the organisation, as well as the individual, can be prosecuted. It does not matter that, for example, the board of directors was unaware that an agent was engaging in corrupt practices. The only defence is for the organisation to demonstrate that it had adequate anti-bribery procedures in place. This will be the focus for many organisations between now and April: reviewing current procedures or putting procedures in place for the first time.

I’m presenting a seminar in Dundee on 28 October which is open to all and I hope the discussion will help as many as possible understand how this new law is likely to affect their organisation and start thinking about any action they need to take to mitigate the risks.

To register to attend the free seminar please email chris.terry@blackadders.co.uk.

Campbell Clark
Partner

UK renewable energy uptake continues

The Latest Ofgem figures show a boom in small-scale renewable energy systems across the UK.

Since the introduction of the feed in tariff (FIT) by the previous government in April 2010, over 9000 new wind, solar, hydro and micro combined heat and power projects have been installed by both householders and commercial organisations.  Installations in August doubled those in July with nearly 4000 householders going green.

FITs are sometimes better known as ‘Clean Energy Cashbacks’, which describes exactly how they work.

Favourite small-scale renewable energy technologies in the UK remain wind energy and solar power, although hydro-electric power is becoming more popular with almost 40 new projects last month.

The FIT is also attracting European solar companies to the UK. For a fact sheet on the FIT we recommend a visit to the UK energy regulator Ofgem website.

Shaun Mackintosh
Associate

Renewable energy consultation

Yet another consultation exercise has been announced by the Scottish Government. This time it has started consulting on changes to the Renewables Obligation (Scotland) Order 2010.

There are significant proposals for this important and growing sector of the economy, which can benefit many Scottish businesses.

On wave and tidal proposals, the Renewable Energy Association’s chief executive Gaynor Hartnell said: “This is good news for wave and tidal generators. This embryonic industry needs all the support it can get. The UK needs to act swiftly to maintain its leading position. We are at risk of losing out on an industry in which we could be world leaders, just as we did with wind energy in the 1980s, which went to the Danes and Germans. This move must be coupled with a consenting regime which facilitates, rather than frustrates developing projects in UK waters.”

You can contribute by following this link: consultation.

Shaun Mackintosh
Associate

Local Development Plan for Dundee

It has been confirmed to us that Dundee City Council has commenced work towards preparing a Local Development Plan which will in time replace the adopted Dundee Local Plan Review 2005.

The Local Development Plan will set out the strategy which will guide future development of the city for a period of 5 years and provide broad indications of growth for up to 10 years in the future. The plan will also contain policies and proposals covering the principal land use issues in the city and when adopted will be the principal consideration in the determination of planning applications.

The council are undertaking a consultation exercise on the plan and are inviting comments to be submitted to them before 8th October 2010.

Any of our clients who are landowners or have an interest in land in Dundee and who want to promote it for development should consider contacting Shaun Mackintosh who heads Blackadders’ Planning team. Shaun would be happy to advise on the way forward for promotion of any site with the council. Shaun can be contacted on 01382 229222 or shaun.mackintosh@blackadders.co.uk.

Construction Law: Take care when signing Letters of Appointment

It is standard practice that the professional team sign up to Letters of Appointment for any project. But how many employers, architects, engineers or other consultants actually take the time to read through or instruct someone else to look at what the appointment actually says before signing up to it?

The appointment is the contractual arrangement that indicates exactly what services are to be provided and the standard to which those services should be carried out to. It doesn’t take more than a few words to transform a relatively fair appointment into one that would leave any consultant struggling to defend themselves should a dispute arise.

The appointment may in many cases seem like a relatively straightforward contract, but it is as much about what is omitted as what is included. Each appointment should be specifically tailored to suit the requirements of the current project – it could be a costly mistake for an employer to appoint someone using a standard appointment.

If you need help with any construction law issues please contact kyle.moir@blackadders.co.uk or david.milne@blackadders.co.uk.

VAT on Salary Sacrifice Schemes

Salary sacrifice schemes are often used by employers to give their employees vouchers as part of their salary. Common examples include vouchers for childcare or bicycles and cycling equipment. The European Court of Justice (ECJ) has recently ruled that drugs giant AstraZeneca should pay VAT on retail vouchers provided to staff as part of their salary. AstraZeneca attempted to claim back the VAT it paid on the purchase of the vouchers and also sought to avoid having to pay VAT when distributing the vouchers to employees. HMRC disagreed and the ECJ found in favour of HMRC. The ECJ’s reasoning was that the salary sacrificed by the employees constituted ‘payment’ for a supply by the employer to the employee.

Tax experts warn that the decision could have significant consequences for employers who operate such schemes. Significant VAT assessments could arise for businesses who have recovered VAT on retail vouchers but have not accounted for the VAT on the supply of the vouchers. Some warn that HMRC could seek to recover tax due over the past four years costing employers in the region of £500m. It is also forecast that the decision could cost employers £100m per year in the future. Advisers warn that the decision could result in taxation of other benefits such as mobile phones and computers.

Businesses which operate salary sacrifice schemes would be wise to review the VAT treatment of benefits on offer to employees to ensure that they comply with the decision.

Simon Allison, Associate
Employment Law

Employees buy fake ‘fit notes’ online

Whilst employers are adapting to the new “fit note” introduced in April 2010, a website has started selling fake versions of the new note. DoctorsNoteStore.com sells imitation certificates, which are stamped and written on official doctors’ letterhead for £9.99 (when last checked they were on a “buy one get one free” offer).  The website advertises the notes as “real looking fake doctors’ sick notes from all UK medical facilities”.

Although the website may claim that the certificates are for novelty purposes only, employers should take care when checking fit notes being used to claim sick pay.  Employers should treat employees who provide fake fit notes as potentially guilty of misconduct and deal with them under their disciplinary procedures.

Employees – do they read their employment contract?

Magazine Which? has recently surveyed 4,000 employees to find that 26% of them only skim read their employment contracts and 6% have not read them at all, putting them at risk of unfair treatment from their employers.  The survey also found that at least 2 million employees in the UK do not have an employment contract.

All employers, regardless of size, must issue a written statement containing the basic minimum particulars of employment required by section 1 of the Employment Rights Act 1996 within 2 months of an employee’s start date.  Whilst failure to do so is unlikely to result in a claim in itself, it would potentially cast the employer in a bad light in the event of a Tribunal claim.  In addition, if a Tribunal claim succeeds and there is no compliant statement, the Tribunal must award either 2 or 4 weeks’ pay as compensation for this failure.

Sarah Winter, Senior Solicitor

Rent reviews and break clauses

In the present difficult property market conditions issues such as rent review and the inclusion of tenant break options are matters which regularly require to be considered when negotiating the terms of a new business tenancy.

Traditionally rent review clauses contained in the leases of Scottish commercial property tended to operate on the basis of being upward only with any increase in rent being calculated on an “open market value” basis where the reviewed rent was determined by comparison with the value of comparable commercial premises exposed for let on similar terms and conditions as contained in the lease of the premises where the rent is being reviewed. Given the effect of the recession landlords have found it difficult to obtain rental evidence necessary to achieve an increase in rents and it is therefore becoming more common for landlords to seek to link any increase in rent upon review to the Retail Price Index (“RPI”). The RPI was introduced in 1948 as a measure of inflation and it is calculated by reference to a basket of goods of all descriptions but was never intended for use in the determination of rents of commercial properties and as such its use for this purpose can produce uncertain results. Careful consideration has to be given in every new lease on how any review of rent should be structured and professional legal and valuation advice given to avoid, in so far as possible, failure to achieve any increase in rent upon review.

Turning to the matter of break options, the trend in recent years has been to see the length of business tenancy agreements reduced. Where leases of 20 years were common not so long ago it is now much more likely that commercial leases will be granted for a shorter period of 5 to 10 years. A landlord, having satisfied himself on the covenant of a potential tenant, will seek to ensure that the proposed lease is a long as possible, whilst a tenant might regard a longer period as being necessary to amortise the cost of fit-out, may also seek to negotiate one or more break clauses entitling the lease to be terminated as a defence against changing market conditions. This is of particular importance where a business tenancy agreement is being entered into in respect of a newly established business where longer term profitability cannot be assured. Again professional advice is needed by both landlords and tenants when weighing up the relative advantages and disadvantages of the use of such options.  Recently there have been instances where a landlord has been persuaded to agree forego one or more future rent reviews in exchange for the tenant undertaking not to exercise a forthcoming tenant’s break option.

The terms of a business tenancy agreement are of vital importance to ensure the viability of the lease in changing market conditions and Blackadders can advise on all aspects of commercial leasing whether from the point of view of a landlord or tenant.

Ken Scott, Associate