The Wilkes Corporate Team led by Jeremy Parkin have advised long-standing client Keysoft Solutions on the sale of their business to Canadian counterpart Transoft Solutions Inc.

Keysoft Solutions, a developer of Building Information Modeling (BIM) software for traffic management and landscape planning and design, has been a close partner and reseller of Transoft Solutions’ products in the UK since 2005.

The business, which was established in 1998, will continue to operate, manage and support key operations and customers from its head office in Warwickshire.

Keysoft Solutions managing director Dr Jeremy Ellis said: “Having been so closely associated with Transoft Solutions for over a decade, this announcement represents a strategic fit for both parties, strengthening our shared vision of being a global leader in our field.

“With a similar culture within our organizations this is a natural fit that allows Keysoft Solutions to be better placed to serve and support our expanding customer base in the future, both in the UK and worldwide.”

Speaking about the deal Jeremy Parkin, Partner in the Wilkes Corporate Team said: “It has always been a pleasure to work with Jeremy and the team at Keysoft Solutions and we were delighted to have been involved in the next stage of their development and growth.”

When asked about the support provided by Wilkes Jeremy Ellis said: “Jeremy Parkin and the team at Wilkes played a vital part in the successful outcome of this deal. Their expert guidance was crucial in overcoming the complications presented by the international nature of this transaction and they gave me the confidence to move ahead at every step to completion.”

Jeremy was supported by Helen Smart (Corporate), Leighann Richards (Real Estate) and Lisa Moore (Employment).

This is the latest in a growing line of M&A work for The Wilkes Partnership, following the completion of deals across a range of sectors including IT software, FMCG, events and health and social care.

For help and advice relating to your business get in touch with Jeremy Parkin on 0121 710 5931 or via email at jparkin@wilkes.co.uk.

The use of Non-Disclosure Agreements (NDAs) to cover up claims of sexual harassment and discrimination may become a thing of the past, says Jas Dubb, Employment Law specialist at The Wilkes Partnership.

When a member of staff leaves an employer, the company may seek to enter into a legally binding settlement agreement, in which the employer will often insist upon a confidentiality clause (which is a form of non-disclosure). A settlement agreement is an agreement whereby the employee agrees not to issue any claims against the employer usually in exchange for an agreed sum of money. Entering into a settlement agreement, containing stringent confidentiality terms, effectively buys an ex-employee’s silence.

The use of settlement agreements to settle allegations of sexual harassment and discrimination in the employment field has come in for considerable public debate of late. Many ex-employees have said they had little option but to consider the settlement route. The lack of affordable legal advice, the legal costs and relatively low compensation awards and the fear of being ‘blacklisted’ from future employment have deterred them from bringing an Employment Tribunal claim.

Earlier this year the Telegraph reported on several alleged cases involving Sir Philip Green, owner of high street brands including Top Shop, Dorothy Perkins and Burtons. Sir Philip tried to prevent The Telegraph from publishing the allegations but ended up with a £3 million legal bill and the details were published anyway.

Billionaire Sir Philip is facing ongoing allegations of sexual misconduct and racist behavior from a number of former members of staff. He is reported to have paid them vast sums – up to £1 million to keep them quiet through the use of NDAs.

Such high profile cases have intensified the call for reforms in the use of the law concerning NDAs. The House of Commons Women and Equality Committee has recently produced a further report entitled ‘The Use of Non-Disclosure Agreements in Discrimination Cases’.

Whilst acknowledging the many protective aspects of Non-Disclosure Agreements for employees as well as employers the report highlights a number of potential downsides with the continued blanket use of NDA, including:

  • their use to cover up unlawful discrimination and harassment allowing management behaviour and organisational culture to go unchallenged and unchanged
  • they can enable perpetrators to go on to harass and discriminate against others and prevent victims of such behavior from knowing about or supporting other complaints
  • they make employers complacent allowing them to avoid investigating unlawful discrimination or harassment complaints and holding perpetrators to account
  • they are being traded for things that employers should be providing as a matter of course such as references and remedial action to tackle discrimination.

This report makes a number of recommendations on preventing and dealing with sexual harassment and discrimination in the workplace including:

  • stopping the use of confidentiality clauses to cover up allegations of sexual harassment and discrimination
  • a requirement for the use of plain English in confidentiality clauses
  • one-way cost shifting so the employer is more likely to be ordered to pay the employee’s costs in the event of a successful Tribunal claim
  • an increase in damages for pain and suffering
  • requiring employers to pay the cost of employees seeking legal advice on settlement agreements
  • strengthening of corporate governance requirements, forcing employers to face up to their responsibility to protect employees from harassment and discrimination

For advice on any employment related matter and to discuss our Free Employment Health Check for your business please contact Jas Dubb at The Wilkes Partnership on 0121 233 4333.

Does an individual’s right to the freedom of expression take precedence over confidentiality obligations owing to their employer?

No, was the decision of the High Court in the case of, Linklaters LLP v Mellish.

Lisa Moore, Employment Solicitor in our Birmingham Officeconsiders the outcome of this recent case which balances the Articles of the European Convention on Human Rights (‘Convention rights’) against the duty of confidentiality.

In this case, Mr Mellish was employed by Linklaters as Director of Business Development and Marketing. He was subject to an express confidentiality provision as detailed in his contract of employment. Following the termination of his employment, Mr Mellish notified his ex-employer that he planned to, ‘share his impressions of the current culture at Linklaters’ along with what was described as, ‘the ongoing struggle Linklaters has with women in the workplace’ and provided various examples of his concerns.

Consequently, Linklaters issued an application for an injunction to restrain disclosure of confidential information; namely, to protect the names of the individuals involved along with some details relating to the relevant matters. The confidential nature of these issues were such that they were not set out in the body of the Court’s transcript and instead were attached as a confidential Annex to the Judgment.

The High Court considered whether, in all the circumstances, it was in the public interest that the duty of confidence should be breached. It was also noted that other Convention rights could be relevant in the circumstances such as the right to privacy of the third parties who could be named by Mr Mellish.

The Court ultimately decided to grant a temporary injunction despite this conflicting with the right to freedom of expression to which Mr Mellish was entitled. Several factors formed the basis of this decision.

Firstly, the Court felt that the matter would have good prospects of success should it proceed to trial. Secondly, there was a clear risk that highly sensitive information could be published. The rights of the third parties involved were also highly relevant to the Court’s decision. It was considered that reputational harm was not the primary motivating factor for Linklaters having applied for the injunction. If it had been, it was far less likely that the injunction would have been granted.

Lisa Moore comments: “Although applications for injunctions are considered on a case by case basis, employers should seek some comfort from this decision. The High Court is clearly willing to override Convention rights to prevent the disclosure of confidential information where necessary. This decision also serves as a reminder of the importance for employers to adopt appropriately drafted confidentiality provisions to protect their position as far as possible. An employer is in a much stronger position whenever attempting to enforce an express term of a contract rather than just relying on an implied term.”

For more information about how we can help assist your business in respect of the above issues, from drafting appropriate confidentiality provisions and restrictive covenants, to obtaining an injunction, please follow the link to our Business Protection Package.

Otherwise, to discuss anything arising from this update, please contact Lisa Moore or any member of the Employment Team on 0121 233 4333. 

Gareth O’Hara, Managing Partner at The Wilkes Partnership and motor industry specialist, provides a guide on what to look for when buying a new dealership for Motor Finance Magazine

When expanding a business through acquisition, it is vital to understand the full facts surrounding the business being purchased. The car acquisitions market for car dealerships is no different.  Having conducted more than 40 deals in this sector, we have a keen insight into the way that businesses are bought and sold.

Before even starting a buying process, having a thorough understanding of the market and assessing the factors impacting it, is vital to deciding whether it is the right time to do a deal. In this rapidly fluctuating industry – which can be susceptible to factors including labour costs, property costs and the revolution of electric and hybrid vehicles – it takes research and a keen business mind to succeed.

In fact, some fantastic deals have been conducted in a down market and many of today’s largest dealerships formed, established and thrived through the recession. So, regardless of whether we’re worried about recession or Brexit uncertainty, there are always opportunities. What really matters comes down to grasping opportunity and making the best deal for the right price and reacting to the market, rather than fearing it. To make the best choice, regardless of economic climate, here is a useful checklist to follow dealing with major issues that need to be covered in the legal documentation.

Business

  1. Ensure the customer database is transferred and live on completion. Sometimes data can be transferred or held by the data supplier on behalf of the buyer before the deal is complete and held ready to release
  2. Are employee terms and benefits consistent with what you expect, have employees been properly consulted and notified in accordance with relevant legislation?
  3. Do any family members that are no longer active or want to be active in the business post sale need to resign?
  4. Are you happy with the quality and age of the vehicle stock and particularly the parts stock that you are paying for? Have you checked it thoroughly?

Property

  1. Does the title plan match the property itself? Are there any unexpected rights of way or shared occupation issues?
  2. Do you actually want everything on the site? Many dealerships have shared facilities with other neighbouring sites. A survey and valuation may be required particularly if finance is involved from a third party.
  3. Do you need to keep the business separate from the property using a property holding company?

Legal

  1. Have you agreed the terms of any new franchise agreement?
  2. Are you buying the telephone numbers and domain names of the business? This will be crucial if it is a shared site, or the number is for another dealership on the same site
  3. Are there any assets included that shouldn’t be part of the business? Can these be bought out by the sellers pre deal?
  4. Has all litigation or disputes with customers been settled? If not, make sure appropriate indemnities are included in the contract. How will you deal with these going forward?
  5. Are all the cars you are buying with the franchise as described? Have you checked them all? Do you understand the finance position on any vehicles? Does any finance need repaying on completion?
  6. Has a principle been agreed for any remedial works to vehicles that have been sold and subsequently come back with complaints? An hourly rate and a cost for parts will need to be agreed, this is usually at a discounted rate for carrying out the work
  7. Ensure that a procedure is in place for sharing any profit on vehicles ordered but not yet delivered

The Sale

  1. On completion, will someone from your team be on site to collect property keys, alarm codes, laptops and mobile phones and be able to check that everything agreed in the sale is on the premises?
  2. Is new insurance in place on the business and its assets?
  3. If it is an asset purchase, are all charges released? If it’s a share purchase, are relevant charges in place and are they in line with existing facilities?
  4. What promises have been made to customers? For example, servicing and free MOTs or any warranties provided that could be called on in the future. How are you dealing with this?
  5. Ensure someone from your existing business is on hand for the first few weeks to deal with any issues that may arise.

To get the best deal for both the buyer and the seller all aspects need to run smoothly to ensure every eventuality is prepared for. Understanding and dealing with the issues makes for a smoother acquisition for all parties, and more importantly a seamless service for existing customers.

The right legal expertise assists in the process and more importantly ensures that all of the issues are dealt with properly in advance of completion. This means that the buyer can concentrate on the business going forward and the seller knows that he has disclosed any issues that could result in a claim against him.

For more information about how The Wilkes Partnership can help you with your business please contact Gareth O’Hara on 0121 710 5904 or email gohara@wilkes.co.uk. To find out more about our Corporate Team click here.

The Wilkes Partnership and Coley & Tilley, have announced a merger creating a 185 person strong firm with a turnover of £12 million a year.

This expansion will significantly enhance our offering for corporate clients and expand our expertise in a range of areas including, commercial property, dispute resolution, corporate & commercial, employment, family, residential conveyancing and probate law. The personal injury team will stay under the Coley & Tilley brand as a recognised market leader in the Midlands.

Nigel Wood, Senior Partner at The Wilkes Partnership, says: “This merger continues the long term growth plans that we have for the firm and by joining with Coley & Tilley we have added considerable legal experience in a range of practice areas. We want to provide the best quality legal services to clients and through this merger we are doing that.

We set out with an ambition to continue growing and delivering expertise that is recognised both regionally and nationally. This merger is a huge step in the right direction of realising those ambitions.”

In 2013, The Wilkes Partnership merged with Solihull-based Williamson & Soden, and continued its growth with several promotions in 2018, as well as expanding its senior team by appointing a HR & Compliance Director, Head of Contentious Probate and two new Managing Partners.

James Leo, Managing Partner at Coley & Tilley, added:  “Through discussions with Nigel and other board members at Wilkes we quickly realised that bringing the two firms together would both complement and enhance our offering to clients. We have similar ambitions to deliver quality work that is industry leading and we have taken care that our clients will see a seamless transition to the new firm with their original points of contact.

“This is the start of a new chapter for both Wilkes and Coley & Tilley and one that provides fresh opportunities to expand and grow together.”

For more information please contact rreid@wilkes.co.uk

We are delighted to have launched our new website, fresh for 2019, that will allow visitors and clients to interact with Wilkes in a smoother and more efficient manner across all devices.

Our new website has been designed to offer the ultimate user-friendly experience with improved navigation and functionality whilst allowing visitors to find out about the full range of services here at Wilkes, and the skilled teams that deliver them.

The site’s new and improved news section will provide visitors with an up-to-date, reliable source of legal news for both businesses and individuals.

We will also be maintaining our German website and are in the process of working towards a site wide translation tool that should be available from the Spring.

We would love to hear your thoughts on our new website. Please get in touch on Twitter @WilkesLaw or email us on marketing@wilkes.co.uk with your comments and feedback.

The weather has been unusually mild so far this winter but as is typical of the UK, it could turn for the worse at any time. The Met Office currently predicts that as we head into the New Year, there is the chance of high pressure becoming established close to the UK, with an increasing chance of some snow showers.

Over the last few winters, spates of bad weather caused major disruption to businesses across the UK; the estimated cost to the UK economy is £230 million per day of disruption.

Pam Sidhu, Head of Employment at Wilkes, advises that employers should have a Bad Weather Policy as part of the usual suite of employment policies in the company handbook, so that employees clearly understand what is expected of them in such circumstances and what the ramifications are if they are unable to attend work due to extreme adverse weather.

Traditionally, there appears to be a culture within much of the UK whereby employees consider such weather events to be an opportunity to take a ‘duvet day’ for which they will receive full salary. However, the fact of the matter is that employees are not automatically entitled to pay if they are unable to get into work due to bad weather.

Pam explains that a sensibly drafted Bad Weather Policy would go some way to dispelling  any myth that employees can take paid time off and provide advance clarification to the workforce as to the employer’s expectations in these circumstances.

The fundamental principle of any such policy would be that in the first instance employees are required to make reasonable efforts to attend work. This may include attending a different office that is more easily accessible.

Employers should also be as flexible as possible in their approach and where possible should consider allowing employees to work remotely from home. This  is becoming more and more feasible nowadays, with the increased use of mobile devices and accessibility of work emails from home computers and laptops. It may also be reasonable to allow employees to take annual leave at short notice or even unpaid leave.

Where an employer feels that the policy is being abused they could introduce disciplinary sanctions to counteract this, where for example it is clear that the employee has failed to make any effort to attend work. The employer will need to be careful to ensure that they are consistent in their approach in this respect.

They will also need to consider the personal circumstances of each employee. Some may live in a very accessible area close to their workplace, whereas others may live some distance away or in more rural locations.

Pam explains that ultimately an employer has a duty of care towards the health and safety of its employees and if through threats of disciplinary sanctions, employees are unreasonably forced to make potentially hazardous journeys then this may expose the employer to risk.

Additionally, it should be noted that employees have the right to reasonable unpaid time off to care for various dependants in emergency situations and not be subjected to any detriment in employment as a result. As such, an employee with young children whose school has closed due to the conditions is likely to be entitled to time off to care for them.

Strictly speaking, the right to time off is unpaid but not all employers will take this approach.  If the employer pays, it is important that it adopts a consistent approach to all staff including those without children.

Pam advises that whilst there will never be a perfect solution to the disruption caused by bad weather to the workplace, good planning and communication by the employer will go some way to alleviating the situation when it does arise.

For advice on any employment related matter please contact Pam Sidhu on 0121 710 5815 or  psidhu@wilkes.co.uk.  You can also reach any member of the Employment Team on 0121 233 4333.

A Race Disparity Audit conducted in 2017 found large variations in pay and opportunities between white British people and ethnic minorities. For instance, it was concluded that around 1 in 10 adults from a Black, Pakistani, Bangladeshi or Mixed origin were unemployed compared with 1 in 25 White British adults.

Against this background, the Government are currently in consultation over introducing the compulsory disclosure of information on pay gaps for employees from different ethnic groups. It is hoped that this may improve equal opportunities in the workplace which, in turn, is likely to benefit Britain’s economy. As part of the consultation, which is due to close on 11 January 2019, businesses are able to share their views as to what information should be published.

Lisa Moore of the Wilkes Employment Team comments, “It is anticipated that the extended reporting obligations will operate in a similar way to gender pay gap reporting. Nevertheless, it appears that reporting on race pay will be a more complex exercise and, as things stand, there as a lack of clarity as to what exactly would need to be reported.”

Amongst other things, the consultation raises the following questions:-

  • Which employers will be bound by the new reporting obligations? Whilst it is most likely that this will apply to employers of 250 workers or more, it has previously been suggested that this could be extended to employers with as few as 50 workers.
  • How do employers collect the requisite data? Accurate reporting will require individuals to divulge all necessary information to their employers. Individuals may not, however, wish to engage with the process. Care will also need to be taken by employers in collating such data to comply with any data protection obligations.
  • How will ethnic groups be classified? The Office for National Statistics classifies individuals into 19 distinct groups. Alternatively, 5 more general groups are commonly used, namely, White, Asian, Black, Mixed and Other.
  • What approach will be taken to reporting the data? This could be as simple as producing one figure comparing average hourly earnings of groups of employees or could compare earnings by pay band or quartile.
  • What other contextual information should be disclosed? Specifically, information like age, gender and location of workers is likely to be highly relevant.
  • Will an action plan be required where employers reveal disparities? If the template for gender pay reporting is adopted, there is no obligation for employers to produce any sort of action plan or narrative in relation to the data published.

Lisa Moore comments, “It is commendable that the Government is attempting to target discrimination against ethnic groups in the workplace. However, it remains to be seen if or how any disparities identified will be tackled and therefore if any improvements to equal opportunities are realistic.”

“There is also a question mark as to how accurate and meaningful any data published will be. In particular, the reporting requirement will not identify why certain ethnic groups might not be applying for particular jobs in the first place nor will it account for discrimination that may occur during recruitment processes.”

Please look out for further updates on this topic in due course.

To discuss anything arising from this update, please contact Lisa Moore on 0121 710 5847 or via email at lmoore@wilkes.co.uk. You can also contact any other member of the Employment Team on 0121 233 4333 

 It is almost that time of year again. The traditional Christmas party is an event that is eagerly anticipated in the majority of workplaces. It can take many forms, in or outside the office premises, during or after work time, informal or formal.

It is also an event that can leave participants with more than just a sore head from one too many at the free bar.

Let’s face it, it is the time of year when as well as free flowing booze, often participants can get carried away and end up letting more than just their hair down. One thing that is certain, according to Sarah Begley, Employment Solicitor at The Wilkes Partnership, is that incidents that occur during this time can potentially land the employee and/or employer in trouble. A lot of trouble.

Workplace behaviour and what is deemed acceptable has been closely followed by the media in the wake of high profile scandals allegedly involving the likes of Harvey Weinstein and Sir Philip Green to name just two.

Now is the time for employers to get their house in order. It is important to remember that employment laws apply even where a party takes place off work premises and outside working hours. Employers could be liable for acts of discrimination, harassment, assault or other unwanted conduct by employees.

Whilst most parties pass with no more than a dodgy dance move or two and a fair share of hangovers, employers should bear in mind some simple measures to help the event pass without incident and reduce the potential risk.

Avoiding Discrimination

The first issue for an employer to consider comes in the planning stage of the party.

Arrangements for the party should be non-discriminatory. If the party is away from office premises, the employer should ensure it has suitable access for disabled staff.

Staff of all religions should be considered. Some religions do not celebrate Christmas and employees of those religions may not want to attend the party and should not be pressured to do so or disadvantaged by not doing so.

Additionally, certain religions forbid the drinking of alcohol or the eating of particular foods. Employers therefore need to ensure soft drinks are equally available and the menu options suitably varied where possible, so as to make the event as inclusive as possible.

If there is an over demand for annual leave requests the day following the party, employers should avoid automatically giving priority to those attending the party.

Acceptable Standards of Behaviour

Drink fuelled behaviour is the root cause of many tribunal claims every year. Employers should remind employees prior to the party that they are representing the organisation and set the boundaries in terms of what are acceptable/unacceptable standards of behaviour.

Employers should make clear to employees that any misconduct at the party will be deemed to be misconduct at work, highlighting the fact that disciplinary sanctions may follow if any employees are guilty of inappropriate behaviour.

It is also worth ensuring that the company’s own policies and procedures in this regard are up to date and encourage all staff to familiarise themselves with the policies prior to the party taking place.

Harassment

Remember that employers may be liable for incidents of harassment that take place at work related social events and could face tribunal claims.

Whilst the Christmas party has often been viewed as the opportunity to pursue that office crush, if the feelings are not reciprocated then the recipient of that advance may, with some justification, feel that they have been subjected to harassment.

Fundamentally an employer needs to be aware that they can be vicariously liable for the actions of an employee in this respect, advises Sarah. There are however simple steps an employer can take to mitigate this risk.

There’s no harm, and indeed every benefit, in employers reminding employees of the need to behave and treat each other with respect. An up to date harassment policy, which is brought to the attention of all staff, will also help to reduce the risk of harassment occurring and go some way to protect the employer.

Additionally, employers should investigate any complaints received promptly.

Absence

Finally there comes the morning after the night before.

Where the Christmas party takes place on a working night, there is always the possibility that employees will “pull a sickie” the next day as a result of over-exuberance.

It is a good idea to warn staff in advance that unauthorised absence the day after the Christmas party may result in disciplinary action. To mitigate this risk, employers could encourage employees to book annual leave, subject to maintaining adequate staff levels.

Where an employer has a suspicion that the real reason for unauthorised absence is too much alcohol the night before, they must ensure this is in fact most likely the case before taking any action and apply any sanction consistently in line with other cases.  Failure to do so could potentially result in unsafe disciplinary action.

Ultimately the Christmas party is about rewarding and thanking your staff for their efforts over the preceding year. Following the basic steps above in advance of the party will only serve to enhance everyone’s enjoyment of it.

If you have any query arising from this update, please contact Sarah Begley on 0121 733 4312 or sbegley@wilkes.co.uk or any member of the Employment team.

Selling a business is often the culmination of years of hard work. Most entrepreneurs will only go through this process once and it is important to get it right first time. Here we address the typical questions that owners might ask, when they are thinking about selling up.

What price can I expect? There are different ways of valuing a business. A valuation might be based on underlying profitability or net asset value. The simple fact though, is that a business is only worth what someone will pay for it. The price is a matter for negotiation and the figure you command may well depend on the level of interest in your business. An experienced adviser can make a huge difference here – they can help present your financials in the best light, gauge interest from potential buyers and help you navigate through the negotiations.

When should I sell? The timing will depend on your reasons for selling. You may want to retire, embark on another project or simply cash in on your investment. Whatever motivates you, start planning early. Having a well-considered exit strategy can help you successfully market your business and achieve a better price. Can you demonstrate that the business is on the up? Are profits growing and are there opportunities for expansion? Will the business be able to survive without you? Do you have mangers who will preserve relationships with clients, customers and suppliers long after you have gone? If the business relies on you, a buyer may be less willing to pay all the cash up front. You might be asked to  sign up to an “earn-out” requiring you to stay working in the business to achieve certain profit forecasts that will then dictate the price you ultimately receive.

What preparations do I need to make? Be prepared to get your house in order. A buyer will want to carry out due diligence on your business. They want to understand what they are buying and what risks and liabilities they may be taking on. To secure a good price, you will need to provide healthy financials, detailed information on your staff, properties and assets and evidence of compliance with key legislation. Your advisers can help you prepare this information and present it in the best light. Starting this process early can also help identify issues that need rectifying. You may choose to disclose major issues to the buyer upfront to avoid price chipping later on.

What will the legal process entail? Once you have found a buyer, you will enter into heads of terms. These provide a “route map” for the transaction by setting out the key commercial terms. The buyer will then commence their due diligence. You should make sure the buyer has signed a confidentiality agreement before they begin this process so that they cannot misuse the information you provide. You will then enter into a detailed sale agreement negotiated by your lawyer. The buyer will ask for a series of protections in the sale agreement and your lawyers will be instrumental in helping you ensure that your liability is kept to a minimum and that you cannot be pursued for any claims after the sale.

If you would like to speak to someone about selling your business, please contact Lucy Freeman on 0121 710 5907 or lfreeman@wilkes.co.uk