Starting Up
Starting Up
Starting a business is an empowering yet daunting time. The start-up costs are generally high and the returns in the first few months are low or non-existent.
Here you will find advice on some of the key areas of concern when starting your business.
Hiring & Managing Employees
Software Development Agreement
What is it?
Freelancer Agreement
What is it?
You may use a self-employed freelancer to do a specific task eg work on a project, design your website or do your marketing for a specific period.The standard contract used to hire a freelancer is a consultancy agreement. This agreement clarifies the basic terms of your relationship with the freelancer eg the work to be done, fees payable and other terms of the agreement eg a non-solicitation clause, confidentiality clause, data protection, ownership of any intellectual property created by the freelancer, indemnification clause for any losses you incur due to the freelancer’s breaches of third party intellectual property. Etc.
Why is it important?
More specialist freelancers may want you to sign up to their own bespoke terms and conditions when you instruct them. If that is the case you must ensure that you check all the clauses carefully to ensure that they do not conflict with your requirements and that you are happy with the terms eg consultant to be liable for breaches of your Intellectual property and third party intellectual property, confidentiality, fee payable, data protection, indemnification clause etc.
Risks
You should also ensure that you are aware of the IR35 tax rules. If a freelancer is providing services to you through a company your arrangement may be subject to the IR35 tax rules. This means that the freelancer may have to pay tax and national insurance as if they were employed by you. HMRC has a useful tool at www.gov.uk to enable businesses check employment status for tax purposes.
Internship Agreement
What is it?
An intern may be a volunteer, a worker or an employee. An internship agreement is an agreement between an intern and an employer where the intern agrees to provide their services in exchange for training provided by the employer or business with no expectation that the internship will result in employment with the business.
Why is it important?
If your intern will just be shadowing staff and will be unpaid you won’t need a contract but it is good practice to send your intern a letter confirming the agreement terms. If you want your intern to work for your business rather than just shadow staff your intern will either be an employee or a casual worker.
Risks
You must have a proper contract for their status and treat them accordingly. If your intern is an employee or a casual work you must pay them the national minimum wage(NMW). If you do not pay them the NMW you are at risk of HMRC prosecuting you or the intern suing you in court.
Staff Handbook
What is it?
Job description
What is it?
Job offer letter
What is it?
Non-executive director letter of appointment
What is it?
Senior employment contract
What is it?
Zero hours contract
What is it?
This is a casual agreement between an individual and a business where the worker works “as and when” the employer needs the labour. There is no guarantee of any set hours and the worker is not obliged to work the hours offered.
Why is it important?
A zero-hours contract should be used where the business simply wishes to hire a worker on a casual basis and would benefit from not having to give the worker a guaranteed number of hours and days of work. This contract is useful for seasonal work or special events eg in the agriculture business, hospitality and catering business; when a business is entering a new market and is unsure of how many staff members it will need; in cases of unexpected absence from work eg to provide cover where there is sudden sickness or absence from work etc.
They are often used in the healthcare, agriculture, hotels, restaurants and education sectors. In the UK workers operating under zero-hours contracts are entitled to rest breaks, annual leave, sick pay and protection from discrimination and must be paid the national minimum wage for hours worked.
Risks
Zero-hours contracts are controversial due to the uncertainty of the work and the fact there is no guaranteed employment. They do however serve a purpose by providing a flexible labour market and a route into more permanent employment.
You should ensure that your zero-hours contract clearly sets out your employee’s employee status, rights and obligations.
Consultancy agreement
What is it?
A consultancy agreement is a contract between a self-employed person (Consultant) and a customer requiring the consultant’s services.It is similar to the standard contract used to hire a freelancer.
Why is it important?
This agreement clarifies the basic terms of your relationship with the freelancer eg the work to be done, fees payable and other terms of the agreement eg a non-solicitation clause, confidentiality clause, data protection, ownership of any intellectual property created by the freelancer, indemnification clause for any losses you incur due to the freelancer’s breaches of third party intellectual property. Etc.
More specialist freelancers may want you to sign up to their own bespoke terms and conditions when you instruct them. If that is the case you must ensure that you check all the clauses carefully to ensure that they do not conflict with your requirements and that you are happy with the terms eg consultant to be liable for breaches of your Intellectual property and third party intellectual property, confidentiality, fee payable, data protection, indemnification clause etc.
Risks
You should also ensure that you are aware of the IR35 tax rules. If a freelancer is providing services to you through a company your arrangement may be subject to the IR35 tax rules. This means that the freelancer may have to pay tax and national insurance as if they were employed by you. HMRC has a useful tool at www.gov.uk to enable businesses check employment status for tax purposes.
From April 2020 if you are a medium or large business the responsibility for determining whether the IR35 tax rules applies to the consultancy and for payment of the income tax and national insurance on behalf of the freelancer lies with the company to whom the freelancer provides the services.
Employment contract
What is it?
An employment contract is an agreement between the employer and employee setting out the rights and duties of the employer and employee. An employment agreement is vital as it forms the legal relationship between the employer and the employee.
Why is it important?
If you have employees, you are legally obliged to provide them with a written statement of their basic terms of employment in writing no later than two months after they start work. From 6 April 2020 this obligation will extend to casual workers and all new employees must be provided with this written statement and additional information on or before the staff member’s first day of work.
Risks
If things go wrong an employment agreement will clarify the legal relationship between the employer and employee and will help the court or tribunal in providing a solution in the event of a dispute between the employer and employee. Think of an employment contract as your passport to nurturing good employment relations with your staff and running a good, progressive business.
If your employee will be part-time do note that part-time staff and fixed term staff (temporary employees) must be treated equally with full-time staff. This means that a part-time or temporary employee on the same role must get the same pay or benefits as a comparable full-time member of staff pro-rated for the length of time they will be with you. Comparable employees are those doing the same or broadly similar work at the same place of work or at a different location.
Managing licenses
Running an online business
Protecting your IP
Business Relationships
Writing a business plan
Business Relationships
Licence to assign
What is it?
If the lease absolutely prevents assignment, then you can refuse consent without stating a reason. However, if the lease prohibits assignment without the landlord’s consent the landlord must have a good reason for refusing consent. If the tenant considers that the landlord’s reason is unreasonable the tenant can challenge the refusal in court.
A tenant’s request to assign the lease may be made orally, by letter or by email as there is no prescribed form for a tenant’s application for consent to assign. A landlord can charge a tenant a fee to register an assignment. Landlords generally insist that the tenant or lessee gives a guarantee (Authorised Guarantee Agreement “AGA”) in the lease to be responsible for any breaches of covenants by the assignee so that the landlord can claim against the original tenant if the assignee breaches any of its obligations under the lease.
Licence to sublet
What is it?
A licence to sublet is an agreement between a landlord and a tenant that gives the tenant the right to sublet part or the whole of the property to another tenant (the “sub-tenant”).
If the lease absolutely prevents sub-letting, then you can refuse consent without stating a reason. However, if the lease prohibits sub-letting without the landlord’s consent the landlord must have a good reason for refusing consent. If the tenant considers that the landlord’s reason is unreasonable the tenant can challenge the refusal in court.
Why is it important?
Where there is a sub-lease the sub-lessee’s landlord is the tenant or lessee so if the sub-lessee breaches its obligations under the sub-lease the lessee or tenant is the only person entitled to take action against the sub-lessee. Landlords generally insist that the sub-tenant joins in the licence to sublet so that the landlord can claim against the sub-tenant if there is any breach of its obligations under the sub-lease.
Sale Agreement
What is it?
If you are selling a commercial property, we will prepare the sale contract and related documents, deal with all enquiries raised by the buyer’s solicitors, report to you and advise you and once the contract has been agreed, complete the transaction as quickly and effectively as possible.
Purchase Agreement
What is it?
Managing licenses
Running an online business
Protecting your IP
Business Relationships
Writing a business plan
Protecting your IP
Joint Venture Agreement
What is it?
This agreement is needed when two or more parties decide to engage in a business collaboration to deal with a particular project. There are two main types of joint ventures:
i) A contractual joint venture is a contract between two parties who are looking to work together on a commercial project and pool their resources but do not want to create a separate legal entity such as a joint venture company or an LLP.(eg two businesses collaborating to bid for a contract or carry out research and development) . The collaboration will be generally be short term or for a defined period and will be of restricted scope with a well-defined purpose.
ii)A corporate joint venture is a contract between two parties looking to work together on a commercial project where they will both set up a separate company (“a joint venture company”) separate from their current operations, own shares in it, have representatives from each of the companies sitting on its board and or want their company to have limited liability for the debts and obligations of the joint venture. This type of joint venture is usually suitable if you will be collaboration on a longer term project and or your collaboration will be more risky and complex and therefore justifies the time and effort of setting up a separate company.
Manufacturing Agreement
What is it?
This agreement is needed if you want to employ the services of another company an individual to manufacture goods/products for you for your business. The agreement should cover a number of key areas including manufacture of the goods, materials, specification, quality control, packaging, storage, confidentiality, data protection, insurance, pricing, payment, delivery, title and risk, intellectual property, disputes, force majeure, service of notices, liability and indemnity clauses.
Memorandum of Understanding
What is it?
An MOU is a pre-contract, non-binding document setting out the key terms agreed by parties who intend to enter into a binding contract. It is also known as Heads of Terms, a Letter of Intent or a Term Sheet. It is a useful tool when two or more parties intend to enter into a future contract and want to identify, describe and agree, without it being contractually binding, the terms to be further negotiated and then recorded in a contractually binding contract.
There will occasionally be statements in a MOU which are exceptions to the general approach that a MOU is not binding : this will occur if the parties put in statements which the MOU expressly states are to be of legally binding effect until a definitive contract is signed. If that is the case those statements will generally be binding.
Why is it important?
An MOU is useful to set out the progress made during negotiations, reduce the potential for misunderstandings, indicate the major issues which still need to be resolved and make it clear what the parties intend when they enter into the contract.
Risks
The disadvantage of a MOU is that it can take up a considerable amount of time and may distract the parties from working on negotiating a full and detailed binding contract. There have been occasions when the parties to a proposed commercial arrangement never actually agree or sign a definite contract and have gone on to implement their deal based only on the MOU. This creates a very uncertain legal position which may lead to disputes and legal problems.
Agency Agreement
What is it?
The term “agent” is often used as shorthand in a business or legal context to mean a person authorised to act for or on behalf of another who is sometimes called the “principal” As a business you need to be able to distinguish whether or not a particular arrangement amounts to a commercial agency rather than another kind of agency or relationship. This is vital if you are to understand the various legal obligations, duties and liabilities that you owe your contractors/ agents and vice versa.
There are different types of individuals and companies which describe themselves as “agents”. These include for instance – commercial agents, sales agents. Employment agents, escrow agents etc.
A commercial agent is a kind of sales agent whose relationship with their principal is largely governed by the Commercial Agents (Council Directive) Regulations 1993 whereas the relationship between any other type of sales and their principal is largely governed by the common law and not by the Regulations. A “commercial agent” is defined by the Regulations as a “…self-employed intermediary who has continuing authority to negotiate the sale or purchase of goods on behalf of their principal or to negotiate and conclude such transactions on behalf of and in the name of that principal”.
Risks
All commercial agency arrangements must comply with the Commercial Agents Regulations 1993. In accordance with the European Withdrawal Act 2018( ad subject to the terms of any final Brexit deal) the Regulations will remain in force post-Brexit.In contrast a sales agent is a freelance self-employed individual or contractor who may or may not work for numerous clients.
You need an Agency Agreement if you want to appoint a third party to act on your behalf, marketing and selling your products and services – generally in exchange for commission on any sales.
An agency agreement sets out the terms and conditions of the relationship, the commission or fees the notice period and any exclusivity rights.
Other ways in which a business can expand without considerable outlay are via a distributorship and a franchise. In contrast to a distributorship, an agent earns commission on sales but does not pay for the goods, own the goods or set the sale price charged to the customer.
Referral Agreement
What is it?
A referral agreement is used where, in order to obtain more customers and sales and widen Business A’s customer base or sell into a new market, a supplier of goods or services (Business A) wishes to engage another person or business (Individual B or Business B) to effect an introduction/referral of new customers to Business A in return for which the agent receives a fee for the introduction/referral itself or for the introduction/referral where it results in a sale within a stated period after the introduction/referral. It is also known as an Introduction agreement. Examples of referrers/introducers are agents who introduce a seller of a business to a potential buyer or who introduce a potential investor to a business.
Why is it important?
If a business colleague is referring work to you or you are the referrer you should get a referral agreement that sets out the terms of your agreement. This will help avoid problems. A referral agreement can also be used where an e-commerce website wishes to increase its sales by allowing other websites to refer customers to them in return for a commission on sales obtained through such referrals. The fees can be either a fixed fee or percentage basis with payment when the referral is made or upon the first transaction or both.
The fees and payment clause can be drafted so that if the refer fails to introduce any new business they will not get a fee.There are specific referral agreements for the introduction of clients for financial services eg investment advice and insurance products.
Licensing Agreement
What is it?
There are numerous types of licensing agreements eg IP licensing agreement eg a trademark licence agreement, a licence to occupy property, a software licence agreement etc.A software licence agreement is an agreement between a software licensor (generally a software developer and/or owner) and licensee who will be using the licensed software in the course of a business or personally.
Why is it important?
We always recommend that our clients get a licensing agreement if for example they want to give a person or another business the right to use their technology, software or any other type of intellectual property. A software licence will set out what the user may or may not do with a piece of software thereby helping developers ensure that they maximise returns on their investments, restrict others from free use of their creative and inventive work and product software that remains stable across a broad range of computer systems.
End User Licence Agreement
What is it?
Service Level Agreement
What is it?
Businesses often seek to obtain services from other businesses for various reasons. In some cases, a simple service agreement is all that is needed especially where the services in question are to be provided over a short term.However, in some cases a long-term relationship and the need for service consistency is essential. In such cases a business owner may prefer to enter into a Service Level Agreement with the service provider.
Why is it important?
Commonly used in the IT & Technology industries, but also applicable in other areas of business especially where large-scale or complex services are involved Service Level Agreements set out the services to be provided under a contract and also sets out the levels of performance to which those services must be provided. Detailed provisions govern the monitoring of the performance of the services and the agreement.
Risks
The service provider is thereby incentivised to consistently provide services in line with the agreed performance levels. If it fails to meet the agreed service levels it is subject to penalties. Service level agreements are preferable to standard service agreements as they contain much more detail, enhanced clarity and accountability over and above standard service agreements.
Partnership agreement
What is it?
There are 2 main types of partnership agreements:
An unlimited partnership – This is a relationship between two or more parties carrying on business together to make a profit. It is usually referred to as a “partnership” or a “general partnership” to distinguish it from other types of partnership such as a limited liability partnership. A partnership can arise by law even if there is no agreement in writing and even if the parties did not intend to create a partnership. An unlimited partnership is not a separate legal entity unlike a company or a limited liability partnership. Therefore, its partners have unlimited liability for the partnership’s debts.
A limited liability partnership – Unlike an unlimited partnership a limited liability partnership (LLP) requires the establishment of a separate corporate body through which the collaboration will be conducted. The partners will have limited liability in the same way as shareholders in a company. The partners will usually sign a member’s agreement setting out how the LLP will be run.
LLP agreement
What is it?
Distribution agreement
What is it?
A distributor buys goods from a supplier to sell on to customers. They can earn a profit margin based on the “mark-up” they add to the original sale price. A Distributorship agreement is an agreement whereby the manufacturer appoints the distributor on a “sole” or “non-exclusive” basis) to resell the manufacturer’s products in a particular territory/ies. In this case, the ownership of the goods is transferred to the distributor prior to the marketing and sale of the goods which means that the distributor may hold stocks of goods which they pay for and own – they therefore bear the risk as to whether they can resell the goods.
There are different types of distribution agreements eg exclusive, sole and selective distribution agreements. Business relationships can sour if based on verbal agreements. Protect your rights by ensuring you have a written distribution agreement.
Model release Form
What is it?
A signed Model Release Form protects your profit margin and your copyright.
Whether you work in a marketing business graphic design or are a commercial vlogger or blogger you need to ensure that any photographs that you use in your business has a properly signed release form. Whilst you do not generally need written permission to take photos, if you take photos and wish to publish the photos on the internet or in any other way or if you are starting a photography business you can protect yourself from any liability or legal proceedings by using a Model Release Form or Letter.
A Model Release Form is the contract between the photographer or User and the “model” (i.e. the subject or owner of the image or photograph). Designed to protect both parties it specifies the ways in which the images or models can or cannot be used (eg for advertising, to make prints, post on social media etc), the media formats, the use or not of the model’s name, the model’s rights (or not) to inspect the end product before publication and the expiry (or not) of the release.
Why is it important?
A Model Release Form is not about obtaining permission to take photographs – it is about obtaining signed consent to publish the photographs for commercial purposes. Whilst it is generally okay to take pictures of a person or people in a public place without written permission if you want to use that photo for specific commercial purposes eg to promote a product on the internet or elsewhere it is best to be safe and get a signed release form from the “model” or owner of the “model”.
Risks
But do get legal advice before you use a release form template as it may need adapting to fit your particular needs.And remember! If you want to use images for a purpose not originally agreed, you MUST get further signed consent.
Sales agency agreement
What is it?
If you are a business selling products you may decide to employ the services of a sales agent. A sales agent is a freelance self-employed business or contractor who might or might not work for several clients. The term “sales agent” includes a “commercial agent” but it is usual to distinguish the two forms of agency by referring to someone as a sales agent only if they are not a “commercial agent” as the legal position of a “commercial agent” differs substantially from other forms of “sales agency”.
The business that owns the products will be called the “Principal” and the sales agent will be called the “Agent”. The sales agent is paid commission only and so is motivated to make as many sales as possible to maximise their income.Central to the relationship between a business and their sales agent will be the “Agency Agreement”. The Sales Agency agreement will set out the product the agent will be selling, where the agent will be selling those products, how the sales are to take place, commission payable on all sales and the key rights and responsibilities of the parties.
Why is it important?
The use of sales agents as opposed to an employed sales team has a number of benefits for the business (i.e. the “Principal”) since commission is only payable on achieved sales, there are no fixed employment costs, and the agent will often already have a network of contacts ie established customer base, will know the market in their area and will have credibility with their customer base.
Sub-contracting agreement
What is it?
Many business contracts allow one or both parties to sub-contract all or part of their obligations under a contract. This can be done via a letter termed a “Notice of Intention to Sub-contract” from the main contractor to the other party to the main contract or via a formal “Sub-contracting” agreement.
Where a “Notice of intention to sub-contract” letter is used, the main contractor (ie sender of the letter) would inform the other party to the contract (ie the recipient of the letter) that the main contractor intends to subcontract certain of their obligations under a contract and will provide details of the subcontractor(s) to whom the obligations will be sub-contracted, a detailed description of the obligations to be sub-contracted with cross-references to the relevant parts of the Contract agreement between the main contractor and the other party to the contract agreement.
The recipient will also be reminded that they are not a party to the sub-contract and that the main contractor will remain their primary contact person and will also remain liable for any acts of omissions of the subcontractors.
As an option, the main contractor may also decide to enter into a formal “Sub-contracting” agreement with the sub-contractor and send a copy of this together with a letter to the sub-contractor and to the other party to the main contract.
Franchise Agreement
What is it?
Franchising your business lets you licence your business model to companies or individual in particular geographical areas and allows you to increase your profits while maintaining a significant degree of control over your brand. A Franchise agreement is an agreement under which the owner of a business grants a licence or licences to others (the “franchisees”) to operate that business in a particular area within the UK or internationally either on a “sole” or “non-exclusive” basis, for a fee therefore spreading their corporate identity and products or services without the expense of setting up new establishments.
All franchisees will use a common identity including the name, trademarks, goodwill, other intellectual property and or products of the franchisor. The franchisor will also provide a “Quality Manual” which in effect is a rule book setting out all the relevant detail needed for the successful day-to-day running of the franchised business eg minimum standards and insurance requirements. The agreement will usually include a confidentiality clause protecting all commercially sensitive information and trade secrets from unauthorised disclosure thereby protecting the interests of the franchisor.
Why is it important?
Franchising has benefits for the franchisor and the franchisee. The franchisor can grow its business without having to open, staff and manage new premises or branches itself whilst the franchisee can manage his/her own business which has been already tested by the franchisor and has access to the franchisor’s experience and expertise.
McDonalds and Kentucky Fried Chicken (KFC) operate their own restaurants and food outlets but also grant franchises to others to operate McDonalds and KFC businesses using their logos with McDonalds and Kentucky Fried Chicken exercising tight quality control over the restaurants, their location, food, health and safety etc.
Managing licenses
Running an online business
Protecting your IP
Business Relationships
Writing a business plan
HR Policies
Communications and equipment policy
What is it?
Data protection and data security policy
Social media policy
What is it?
Equal opportunities policy
What is it?
Flexible working policy
What is it?
The Advisory, Conciliation and Arbitration Service (ACAS) recommends that employers put in place a flexible working policy as best practice to ensure that you deal with flexible working requests consistently and to ensure that staff are all aware of how you deal with them.
Flexible working has advantages and disadvantages. Is flexible working right for your business? Contact us to discuss!
Health and safety policy
What is it?
A health and safety policy states the employer’s commitment to protect employees’ health and safety and to cooperate with other parties such as employees, supervisors, the health and safety representative to ensure a safe work environment.If you have five or more employees, you are legally required to have a written health and safety policy.
Why is it important?
If you do not have a written policy the Health and Safety Executive (HSE) can take action against you and prosecute you. Even if you do not have five employees it is best practice to have a written health and safety policy to make your health and safety arrangements clear. Consideration of the health, safety and welfare of staff is an integral part of the management process. The purpose of a Health and Safety policy is to establish general standards for health and safety at work and to distribute responsibility for their achievement to all managers, supervisors and other employees through the normal line management processes.
Risks
Managers must approach health and safety in a systematic way, by identifying hazards and problems, planning improvements, taking executive action and monitoring results. There should be an annual audit and regular risk assessments.
Grievance procedure
What is it?
You are legally obliged to provide your employees with details of your business’s grievance and disciplinary procedures. The grievance procedure is a tool by which a member of staff may formally have a grievance (i.e. “complaint”) regarding any condition of their employment heard by the Company management. Your grievance procedure should set out the process to be followed, to whom a grievance should be reported and the right to appeal a finding. The employee has the right to representation by a Trade Union representative or a work colleague.
Why is it important?
Your disciplinary policy should include examples of the types of conduct or behaviour that will lead to disciplinary action as well as information about the process your business will follow in investigating and handling a disciplinary matter. You also need to set out the names of the people in your business who will deal with disciplinary matters and any appeals arising from the disciplinary process.
It is also good practice to have a Whistleblowing policy, a Bullying and harassment policy and a smoking, drugs and alcohol policy alongside your standard grievance and disciplinary procedures.
Redundancy policy
What is it?
Sickness policy
What is it?
If you have employees, you are required to set out details of their sick pay and leave entitlements in their employment contracts.
A sickness policy sets out your procedures for dealing with and managing employee sickness absences and return to work eg how you want your staff to notify you when they are sick, whether your company offers any enhanced sick pay (ie contractual sick pay) over the minimum statutory sick pay (SSP), what absence levels will trigger the beginning of the disciplinary procedure, your policy regarding time off for medical appointments.
Why is it important?
Having a sickness policy in place is not a legal requirement however it can be reassuring and can help to remove some of the stress and uncertainty associated with sickness absence. It can also help to ensure that sickness absences are handled fairly and consistently across your work force.
Risks
When writing your policy you must remember that if an employee is ill and or off work due to a disability you must make any reasonable adjustments to help that employee remain at work or return to work before imposing any sanction under your sickness absence policy. This could include agreeing to provide them with a special type of chair (if the employee has back pain), changing their working hours so they can attend work more easily or providing a phased return to work ie the employee works for 3 or 4 hours for the first few weeks and then increases their working hours gradually.
If you do not have a sickness policy and you treat staff inconsistently you may end up being sued by an employee for discrimination.
Maternity policy
What is it?
Parental leave policy
What is it?
Paternity policy
What is it?
Shared parental leave policy
What is it?
This is required by law. A shared parental leave policy sets out the policies and procedures that your business has to manage shared parental leave and return to work.
Why is it important?
Your shared parental leave policy should also include information about time off work for antenatal or pre-adoption appointments, the rules about leave and pay during the child’s first 12 months and return to work rights of the expectant partner. Your policy should also include information about whether your business will offer the minimum statutory rights or an enhanced entitlement.
Environmental policy
What is it?
Starting an online business
Software Development Agreement
What is it?
Freelancer Agreement
What is it?
You may use a self-employed freelancer to do a specific task eg work on a project, design your website or do your marketing for a specific period.The standard contract used to hire a freelancer is a consultancy agreement. This agreement clarifies the basic terms of your relationship with the freelancer eg the work to be done, fees payable and other terms of the agreement eg a non-solicitation clause, confidentiality clause, data protection, ownership of any intellectual property created by the freelancer, indemnification clause for any losses you incur due to the freelancer’s breaches of third party intellectual property. Etc.
Why is it important?
More specialist freelancers may want you to sign up to their own bespoke terms and conditions when you instruct them. If that is the case you must ensure that you check all the clauses carefully to ensure that they do not conflict with your requirements and that you are happy with the terms eg consultant to be liable for breaches of your Intellectual property and third party intellectual property, confidentiality, fee payable, data protection, indemnification clause etc.
Risks
You should also ensure that you are aware of the IR35 tax rules. If a freelancer is providing services to you through a company your arrangement may be subject to the IR35 tax rules. This means that the freelancer may have to pay tax and national insurance as if they were employed by you. HMRC has a useful tool at www.gov.uk to enable businesses check employment status for tax purposes.
Internship Agreement
What is it?
An intern may be a volunteer, a worker or an employee. An internship agreement is an agreement between an intern and an employer where the intern agrees to provide their services in exchange for training provided by the employer or business with no expectation that the internship will result in employment with the business.
Why is it important?
If your intern will just be shadowing staff and will be unpaid you won’t need a contract but it is good practice to send your intern a letter confirming the agreement terms. If you want your intern to work for your business rather than just shadow staff your intern will either be an employee or a casual worker.
Risks
You must have a proper contract for their status and treat them accordingly. If your intern is an employee or a casual work you must pay them the national minimum wage(NMW). If you do not pay them the NMW you are at risk of HMRC prosecuting you or the intern suing you in court.
Staff Handbook
What is it?
Job description
What is it?
Job offer letter
What is it?
Non-executive director letter of appointment
What is it?
Senior employment contract
What is it?
Zero hours contract
What is it?
This is a casual agreement between an individual and a business where the worker works “as and when” the employer needs the labour. There is no guarantee of any set hours and the worker is not obliged to work the hours offered.
Why is it important?
A zero-hours contract should be used where the business simply wishes to hire a worker on a casual basis and would benefit from not having to give the worker a guaranteed number of hours and days of work. This contract is useful for seasonal work or special events eg in the agriculture business, hospitality and catering business; when a business is entering a new market and is unsure of how many staff members it will need; in cases of unexpected absence from work eg to provide cover where there is sudden sickness or absence from work etc.
They are often used in the healthcare, agriculture, hotels, restaurants and education sectors. In the UK workers operating under zero-hours contracts are entitled to rest breaks, annual leave, sick pay and protection from discrimination and must be paid the national minimum wage for hours worked.
Risks
Zero-hours contracts are controversial due to the uncertainty of the work and the fact there is no guaranteed employment. They do however serve a purpose by providing a flexible labour market and a route into more permanent employment.
You should ensure that your zero-hours contract clearly sets out your employee’s employee status, rights and obligations.
Consultancy agreement
What is it?
A consultancy agreement is a contract between a self-employed person (Consultant) and a customer requiring the consultant’s services.It is similar to the standard contract used to hire a freelancer.
Why is it important?
This agreement clarifies the basic terms of your relationship with the freelancer eg the work to be done, fees payable and other terms of the agreement eg a non-solicitation clause, confidentiality clause, data protection, ownership of any intellectual property created by the freelancer, indemnification clause for any losses you incur due to the freelancer’s breaches of third party intellectual property. Etc.
More specialist freelancers may want you to sign up to their own bespoke terms and conditions when you instruct them. If that is the case you must ensure that you check all the clauses carefully to ensure that they do not conflict with your requirements and that you are happy with the terms eg consultant to be liable for breaches of your Intellectual property and third party intellectual property, confidentiality, fee payable, data protection, indemnification clause etc.
Risks
You should also ensure that you are aware of the IR35 tax rules. If a freelancer is providing services to you through a company your arrangement may be subject to the IR35 tax rules. This means that the freelancer may have to pay tax and national insurance as if they were employed by you. HMRC has a useful tool at www.gov.uk to enable businesses check employment status for tax purposes.
From April 2020 if you are a medium or large business the responsibility for determining whether the IR35 tax rules applies to the consultancy and for payment of the income tax and national insurance on behalf of the freelancer lies with the company to whom the freelancer provides the services.
Employment contract
What is it?
An employment contract is an agreement between the employer and employee setting out the rights and duties of the employer and employee. An employment agreement is vital as it forms the legal relationship between the employer and the employee.
Why is it important?
If you have employees, you are legally obliged to provide them with a written statement of their basic terms of employment in writing no later than two months after they start work. From 6 April 2020 this obligation will extend to casual workers and all new employees must be provided with this written statement and additional information on or before the staff member’s first day of work.
Risks
If things go wrong an employment agreement will clarify the legal relationship between the employer and employee and will help the court or tribunal in providing a solution in the event of a dispute between the employer and employee. Think of an employment contract as your passport to nurturing good employment relations with your staff and running a good, progressive business.
If your employee will be part-time do note that part-time staff and fixed term staff (temporary employees) must be treated equally with full-time staff. This means that a part-time or temporary employee on the same role must get the same pay or benefits as a comparable full-time member of staff pro-rated for the length of time they will be with you. Comparable employees are those doing the same or broadly similar work at the same place of work or at a different location.
Managing licenses
Running an online business
Protecting your IP
Business Relationships
Writing a business plan
Buying & Selling Goods & Services
Communications and equipment policy
What is it?
Data protection and data security policy
Social media policy
What is it?
Equal opportunities policy
What is it?
Flexible working policy
What is it?
The Advisory, Conciliation and Arbitration Service (ACAS) recommends that employers put in place a flexible working policy as best practice to ensure that you deal with flexible working requests consistently and to ensure that staff are all aware of how you deal with them.
Flexible working has advantages and disadvantages. Is flexible working right for your business? Contact us to discuss!
Health and safety policy
What is it?
A health and safety policy states the employer’s commitment to protect employees’ health and safety and to cooperate with other parties such as employees, supervisors, the health and safety representative to ensure a safe work environment.If you have five or more employees, you are legally required to have a written health and safety policy.
Why is it important?
If you do not have a written policy the Health and Safety Executive (HSE) can take action against you and prosecute you. Even if you do not have five employees it is best practice to have a written health and safety policy to make your health and safety arrangements clear. Consideration of the health, safety and welfare of staff is an integral part of the management process. The purpose of a Health and Safety policy is to establish general standards for health and safety at work and to distribute responsibility for their achievement to all managers, supervisors and other employees through the normal line management processes.
Risks
Managers must approach health and safety in a systematic way, by identifying hazards and problems, planning improvements, taking executive action and monitoring results. There should be an annual audit and regular risk assessments.
Grievance procedure
What is it?
You are legally obliged to provide your employees with details of your business’s grievance and disciplinary procedures. The grievance procedure is a tool by which a member of staff may formally have a grievance (i.e. “complaint”) regarding any condition of their employment heard by the Company management. Your grievance procedure should set out the process to be followed, to whom a grievance should be reported and the right to appeal a finding. The employee has the right to representation by a Trade Union representative or a work colleague.
Why is it important?
Your disciplinary policy should include examples of the types of conduct or behaviour that will lead to disciplinary action as well as information about the process your business will follow in investigating and handling a disciplinary matter. You also need to set out the names of the people in your business who will deal with disciplinary matters and any appeals arising from the disciplinary process.
It is also good practice to have a Whistleblowing policy, a Bullying and harassment policy and a smoking, drugs and alcohol policy alongside your standard grievance and disciplinary procedures.
Redundancy policy
What is it?
Sickness policy
What is it?
If you have employees, you are required to set out details of their sick pay and leave entitlements in their employment contracts.
A sickness policy sets out your procedures for dealing with and managing employee sickness absences and return to work eg how you want your staff to notify you when they are sick, whether your company offers any enhanced sick pay (ie contractual sick pay) over the minimum statutory sick pay (SSP), what absence levels will trigger the beginning of the disciplinary procedure, your policy regarding time off for medical appointments.
Why is it important?
Having a sickness policy in place is not a legal requirement however it can be reassuring and can help to remove some of the stress and uncertainty associated with sickness absence. It can also help to ensure that sickness absences are handled fairly and consistently across your work force.
Risks
When writing your policy you must remember that if an employee is ill and or off work due to a disability you must make any reasonable adjustments to help that employee remain at work or return to work before imposing any sanction under your sickness absence policy. This could include agreeing to provide them with a special type of chair (if the employee has back pain), changing their working hours so they can attend work more easily or providing a phased return to work ie the employee works for 3 or 4 hours for the first few weeks and then increases their working hours gradually.
If you do not have a sickness policy and you treat staff inconsistently you may end up being sued by an employee for discrimination.
Maternity policy
What is it?
Parental leave policy
What is it?
Paternity policy
What is it?
Shared parental leave policy
What is it?
This is required by law. A shared parental leave policy sets out the policies and procedures that your business has to manage shared parental leave and return to work.
Why is it important?
Your shared parental leave policy should also include information about time off work for antenatal or pre-adoption appointments, the rules about leave and pay during the child’s first 12 months and return to work rights of the expectant partner. Your policy should also include information about whether your business will offer the minimum statutory rights or an enhanced entitlement.
Environmental policy
What is it?
Letting a commercial property
Commercial lease
What is it?
Home office rental agreement
What is it?
A home office rental agreement is an agreement between an owner or lessee of property to share their home office space with another person. These agreements are usually used by start-ups and home-based businesses and will be in the form of a licence agreement. The licensor will be the owner or tenant of the property and the licensee will be the sharer who may be an individual or a company. If more than one individual sharer it is essential that they be all named on the agreement so that they remain jointly and severally liable under the rental agreement. The licence fee should be inclusive of the service costs eg internet, utilities, etc.
Why is it important?
If your business is a lessee, you must check your lease and check with your landlord to ensure that the grant of a licence to the sharers will not be a breach of your obligations as a tenant.
Office sharing agreement
What is it?
Office space can be expensive in city centres and town centres. An office sharing agreement is an agreement between an owner of office space and another business which wants to share its office space. It is used where the owner of the property or lessee wants to share their office space with a business or individual or where two businesses or sole traders want to share the same office space. This agreement will be in the form of a licence agreement. If the office space is one room the licence will not grant each business or individual a defined and fixed space within the room but will grant the businesses and individuals the office space. The licence fee should be inclusive of the service costs eg internet, utilities, etc.
Why is it important?
If your business does not own the property you must check your lease and check with your landlord to ensure that your grant of a licence to the sharers will not be a breach of your obligations under your business tenancy.
Rent deposit deed
What is it?
A rent deposit is a sum of money paid by a commercial tenant as security to their landlord prior to or at the grant of a commercial lease in respect of a commercial property rental.
A rent deposit deed is the document which sets out how the landlord will safeguard a commercial tenant’s deposit. It works in a similar manner to rent deposits for residential lettings however in this case the deposit is usually held by the commercial landlord and not by a government- backed tenancy deposit scheme as in the case of residential rent deposits.
Why is it important?
A rent deposit deed protects the landlord and the tenant. Under the rent deposit deed, the deposit remains the property of the tenant however if the tenant does not pay the rent or breaches any fundamental term of the lease the landlord can take money out of the deposit in recompense.
Rent deposit deeds are standard in commercial leases and provide peace of mind to a commercial landlord especially if the prospective tenant eg a start-up business or a sole trader cannot prove his/her trading credentials and creditworthiness. It gives a guarantee of easy access to funds should the tenant default. It is also beneficial for the tenant as it is akin to “savings” which will be returned to the tenant in future with any accrued interest if there is no breach of covenant and it is also a fund which the landlord may use to set off any breach of covenant by the tenant without the tenant having to incur further expense.
Lease agreement
What is it?
Building Works and Construction agreement
Co-working agreement
What is it?
A coworking agreement is an agreement that offers an occupier (individual or business) shared office space for terms ranging from weekly, month-to-month to as long as five to ten years. Instead of a rental agreement you enter into a service contract with your prospective occupant/licensee. The co-worker pays an occupancy or licence fee not rent.
The space offered can range from one or several desks in an open plan office space in a building occupied by several businesses to a private office in a multi-occupied office building. Co-workers pay for the space they occupy, networking access, the communal areas – eg common room, kitchens etc, internet connection, special events and the use of meeting and conference rooms.
A coworking agreement is not considered a lease. It is far closer to a licence eg an agreement that a gym user signs to attend a gym or even an agreement that a guest signs to lodge at a hotel. A coworking agreement should contain clauses that reflect the communal nature of shared spaces and a collaborative and positive working atmosphere.
Why is it important?
A properly drafted coworking agreement should clearly define the space to be used by the occupier and the amenities to be shared with the other occupants. The agreement should also outline these essential areas eg description of services to be provided– ie hours of access to office space, internet access, mail and workshops; use of services; duration of the licence – weekly, monthly or yearly; renewals and terminations; rules of the premises/code of conduct- including inappropriate use of the premises and prohibited activities ; confidentiality- in view of the communal nature of coworking a confidentiality clause is essential; payment terms; limitation of liability, insurance and possibly disclaimers.
Risks
For landlords and tenants, the main advantage of a coworking agreement is that it is more cost-effective and provides flexibility to businesses. When properly drafted it poses far less risk than a traditional commercial lease as it is generally simple and straightforward, and does not have the significant legal costs, long contracts and drawn out legal process that commercial leases have.
Managing licenses
Running an online business
Protecting your IP
Business Relationships
Writing a business plan
Sale and Purchase of Commercial Property
Licence to assign
What is it?
If the lease absolutely prevents assignment, then you can refuse consent without stating a reason. However, if the lease prohibits assignment without the landlord’s consent the landlord must have a good reason for refusing consent. If the tenant considers that the landlord’s reason is unreasonable the tenant can challenge the refusal in court.
A tenant’s request to assign the lease may be made orally, by letter or by email as there is no prescribed form for a tenant’s application for consent to assign. A landlord can charge a tenant a fee to register an assignment. Landlords generally insist that the tenant or lessee gives a guarantee (Authorised Guarantee Agreement “AGA”) in the lease to be responsible for any breaches of covenants by the assignee so that the landlord can claim against the original tenant if the assignee breaches any of its obligations under the lease.
Licence to sublet
What is it?
A licence to sublet is an agreement between a landlord and a tenant that gives the tenant the right to sublet part or the whole of the property to another tenant (the “sub-tenant”).
If the lease absolutely prevents sub-letting, then you can refuse consent without stating a reason. However, if the lease prohibits sub-letting without the landlord’s consent the landlord must have a good reason for refusing consent. If the tenant considers that the landlord’s reason is unreasonable the tenant can challenge the refusal in court.
Why is it important?
Where there is a sub-lease the sub-lessee’s landlord is the tenant or lessee so if the sub-lessee breaches its obligations under the sub-lease the lessee or tenant is the only person entitled to take action against the sub-lessee. Landlords generally insist that the sub-tenant joins in the licence to sublet so that the landlord can claim against the sub-tenant if there is any breach of its obligations under the sub-lease.
Sale Agreement
What is it?
If you are selling a commercial property, we will prepare the sale contract and related documents, deal with all enquiries raised by the buyer’s solicitors, report to you and advise you and once the contract has been agreed, complete the transaction as quickly and effectively as possible.
Purchase Agreement
What is it?
Managing licenses
Running an online business
Protecting your IP
Business Relationships
Writing a business plan
Planning & Highways
Communications and equipment policy
What is it?
Data protection and data security policy
Social media policy
What is it?
Equal opportunities policy
What is it?
Flexible working policy
What is it?
The Advisory, Conciliation and Arbitration Service (ACAS) recommends that employers put in place a flexible working policy as best practice to ensure that you deal with flexible working requests consistently and to ensure that staff are all aware of how you deal with them.
Flexible working has advantages and disadvantages. Is flexible working right for your business? Contact us to discuss!
Health and safety policy
What is it?
A health and safety policy states the employer’s commitment to protect employees’ health and safety and to cooperate with other parties such as employees, supervisors, the health and safety representative to ensure a safe work environment.If you have five or more employees, you are legally required to have a written health and safety policy.
Why is it important?
If you do not have a written policy the Health and Safety Executive (HSE) can take action against you and prosecute you. Even if you do not have five employees it is best practice to have a written health and safety policy to make your health and safety arrangements clear. Consideration of the health, safety and welfare of staff is an integral part of the management process. The purpose of a Health and Safety policy is to establish general standards for health and safety at work and to distribute responsibility for their achievement to all managers, supervisors and other employees through the normal line management processes.
Risks
Managers must approach health and safety in a systematic way, by identifying hazards and problems, planning improvements, taking executive action and monitoring results. There should be an annual audit and regular risk assessments.
Grievance procedure
What is it?
You are legally obliged to provide your employees with details of your business’s grievance and disciplinary procedures. The grievance procedure is a tool by which a member of staff may formally have a grievance (i.e. “complaint”) regarding any condition of their employment heard by the Company management. Your grievance procedure should set out the process to be followed, to whom a grievance should be reported and the right to appeal a finding. The employee has the right to representation by a Trade Union representative or a work colleague.
Why is it important?
Your disciplinary policy should include examples of the types of conduct or behaviour that will lead to disciplinary action as well as information about the process your business will follow in investigating and handling a disciplinary matter. You also need to set out the names of the people in your business who will deal with disciplinary matters and any appeals arising from the disciplinary process.
It is also good practice to have a Whistleblowing policy, a Bullying and harassment policy and a smoking, drugs and alcohol policy alongside your standard grievance and disciplinary procedures.
Redundancy policy
What is it?
Sickness policy
What is it?
If you have employees, you are required to set out details of their sick pay and leave entitlements in their employment contracts.
A sickness policy sets out your procedures for dealing with and managing employee sickness absences and return to work eg how you want your staff to notify you when they are sick, whether your company offers any enhanced sick pay (ie contractual sick pay) over the minimum statutory sick pay (SSP), what absence levels will trigger the beginning of the disciplinary procedure, your policy regarding time off for medical appointments.
Why is it important?
Having a sickness policy in place is not a legal requirement however it can be reassuring and can help to remove some of the stress and uncertainty associated with sickness absence. It can also help to ensure that sickness absences are handled fairly and consistently across your work force.
Risks
When writing your policy you must remember that if an employee is ill and or off work due to a disability you must make any reasonable adjustments to help that employee remain at work or return to work before imposing any sanction under your sickness absence policy. This could include agreeing to provide them with a special type of chair (if the employee has back pain), changing their working hours so they can attend work more easily or providing a phased return to work ie the employee works for 3 or 4 hours for the first few weeks and then increases their working hours gradually.
If you do not have a sickness policy and you treat staff inconsistently you may end up being sued by an employee for discrimination.
Maternity policy
What is it?
Parental leave policy
What is it?
Paternity policy
What is it?
Shared parental leave policy
What is it?
This is required by law. A shared parental leave policy sets out the policies and procedures that your business has to manage shared parental leave and return to work.
Why is it important?
Your shared parental leave policy should also include information about time off work for antenatal or pre-adoption appointments, the rules about leave and pay during the child’s first 12 months and return to work rights of the expectant partner. Your policy should also include information about whether your business will offer the minimum statutory rights or an enhanced entitlement.
Environmental policy
What is it?