Corporate Bulletin - Summer 2010

Welcome to the Summer 2010 edition of the Withy King Corporate Services bulletin, which brings you news and updates from our Corporate, Employment and Commercial Dispute Resolution (CDR) teams.

In this edition:

 New technique ensures pets have picture perfect health 

Withy King's Technology & Media team has helped Helen Morrell from South Oxfordshire to become the first person in the UK to use thermal imaging to help identify and monitor injury and illness in domestic pets.

Helen has launched Veterinary Thermal Imaging Ltd, which uses special cameras to detect physiological changes in animals. The technique can highlight health problems which would otherwise be undetectable without invasive and expensive procedures such as x-rays and MRI scans. More information about Helen and the technique can be found on her website: www.veterinary-thermal-imaging.com.

Jessica Bent, Head of Technology & Media at Withy King said: “Helen’s business is unique in many ways but the advice is the same for any business, be it a start-up or an existing company.   Make sure you have clear standard terms of business which, among other things, set out your payment terms and limit your liability for the services or goods you provide.”

“Many businesses now have websites too and, even where this is simply a ‘shop window’, you should have adequate terms of use to protect against unauthorised copying of material and potential liabilities to visitors to the site.”

Helen is currently working with a three-year-old terrier called Jack who is suffering from muscular atrophy caused by a locking patella.

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Relocating a Business?

Malcolm Gregory, Head of Employment at Withy King, explains the employment implications of relocating a business.

Q: I run a small business and like many businesses, I am looking to save costs where possible. One option I am considering is to relocate to cheaper premises about 10 miles away. I know that this is probably going to be an unpopular decision due to the fact that some employees will now have further to travel to work. How should I proceed?

A: The first thing to consider in situations such as these is whether any of your employees have a mobility clause in their contract of employment. A mobility clause is one which states that an employer may relocate the employee to an alternative location if required.
 
If the contract does contain a mobility clause you then need to consider whether the move to the new office 10 miles away, falls within the scope of the clause. For example, if the clause only allows you to relocate the employee within 5 miles of the current place of work, you would not be able to rely on it in order to move the employee in this instance. If the clause is wide enough in its scope, you can exercise your right under the contract to require your employee to work from a different office location. When exercising your right to relocate the employee under the mobility clause, you should do so in a reasonable fashion, for example, giving the employee reasonable notice of the change. If the employee refuses to move, you may then be in the position to begin disciplinary proceedings, possibly leading to dismissal of the employee, for a failure to comply with a reasonable, lawful instruction of the company.  
 
If the employee’s contract does not have a mobility clause, it may be possible to imply a mobility clause into the contract of employment. For example, the employee may in some cases be required to work anywhere within reasonable commuting distance of their home, even if that is not expressly stated in their contract of employment. If a term can be implied into the contract of employment, it may be possible to require the employee to relocate to the new premises, even if they are not in agreement with the move. However, care should be taken in seeking to rely on an implied mobility/flexibility clause. If no mobility clause can be implied into the contract, then forcing the employee to relocate may amount to a fundamental breach of their contract of employment, which could lead to claims for constructive unfair dismissal.
 
If there is no mobility clause (express or implied) in the contract of employment, the next step would be to consult with the employee about the reasons for the office relocation and see whether agreement can be reached. If the employee consents to working at the new office, and you may need to negotiate some sort of incentive for them to do so, then the contract will be varied by agreement. 

If you do not have the contractual right to change the employee’s office location and you cannot secure the employee’s agreement to the move, it may be necessary to consider terminating the employee’s employment. This is likely to be by reason of redundancy, if it is because the employee’s place of work has closed down or been relocated. If you find yourself in this situation then a fair redundancy consultation process must be followed and legal advice should be taken.  

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Withy King's notable deals

Withy King sets the Wheels in motion

Simon Merrall, an Associate at Withy King, acted for the management team in a recent management buy-in. Jeff Bailey, Gary Caldicott and Tom Meehan took a controlling stake in Wheeler's (Westbury) Limited who are now running the £5.5m turnover business alongside founder and chairman Ron Norris. Wheeler’s is an electrical, mechanical and fire security contractor with clients including Wiltshire County Council and the Ministry of Defence.  The company, based in Wiltshire and established in 1979, currently employs 72 staff.
 
Italian Job
 
The team, led by Withy King’s head of Corporate, David Cavaliero, acted for a large Italian automotive equipment company in a £5million deal to purchase a leading competitor based in the UK. The deal, which concluded last year, involved extensive negotiations with Italian and German lawyers and Belgain, French and Swiss bankers, as well as lawyers acting for the sellers in the UK. 
 
Withy King helps buy-out 

Simon Merrall, an Associate at Withy King, recently advised the sellers on the management buy-out of a Bristol based company which supplies material to the construction industry. The deal included the negotiation of a sophisticated loan arrangement between the target company and an associated company of the sellers.

Homes Caring for Autism secures expansion

Homes Caring for Autism has secured a funding to open two other homes in Taunton – providing support for an additional 32 people. Katharine Mortimer, a Corporate partner and member of Withy King’s specialist Healthcare sector team, was on hand to offer advice to help secure the deal, which will increase the staffing numbers to 110, as autistic individuals generally need one-to-one support 15 hours a day.

Richard Smith, Managing Director started the business five years ago with a simple remortgage of the family home after running a temporary staffing agency specialising in the field of learning disability.

“The expansion plans were actually signed off 18 months ago at a time when bank finance was fairly straightforward to obtain. Then suddenly everything was thrown into reverse by the banking crisis.

“Katharine Mortimer, a partner in Withy King’s Corporate team, helped us reach a refinance agreement with RBS.

“I have used Withy King for a number of years – I know them well and I understand their capabilities. I can’t speak highly enough of Katharine, particularly in representing me in these negotiations, where her expertise and knowledge of aspects such as bank policy was a godsend”.

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What the CDR Team can do for you

Litigation is an area of our expertise at Withy King that the majority of our clients hope they never have to get involved in. But litigation is not necessarily about going all the way to Court, in fact, this is rarely the case.

Our Commercial Disputes Resolution (CDR) team have a vast amount of experience acting for our corporate clients on many potentially contentious issues and have a great record of assisting clients to reach fast, effective and commercial settlements without the need for recourse to formal Court proceedings.

Our  CDR team are in tune with your business needs and are able to advise on a large range of commercial issues. Many of our clients come to us at the early stages of a potentially contentious issue because we can assist with your handling of the issues, in the background if you prefer, ensuring that your position remains protected whilst you conduct communications with the other party directly.
 
Alternatively, our CDR team can act on your behalf and correspond directly with any third party with whom you have a potential dispute. Your legal position can then be put across as stringently as possible in order to set up a strong negotiating position for you. We will then look to assist you in resolving the dispute as efficiently and cost effectively as possible, taking into account the strength of your legal position.
 
Of course, our team are experienced litigators and are continuously involved in acting for clients bringing and defending formal proceedings. When negotiation and communication breaks down our team are ready and able to commence formal action on your behalf. We will ensure that you are fully informed of the Court process, as well as the costs and the risks involved so that you can make an informed decision to resolve your dispute.
 
The CDR team can advise on a large range of commercial issues at any stage such as;
  • Internal company disputes including issues between shareholders where the actions of one shareholder has devalued the shareholding of another; 
  • Directors duties where you are concerned that your actions or proposed actions maybe contrary to your directors duties which have changed since the implementation of the Companies Act 2006.
We can also provide advice and representation in relation to;
  • Partnerships disputes;
  • Contractual disputes;
  • Commercial agency issues;
  • Insolvency;
  • Professional negligence;
  • Debt recovery;
  • Mediation
Please visit the CDR pages of our website where you will find further details of our experience in these areas as well as fact sheets providing you with information regarding many of the above areas of expertise:

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Withy King's Corporate and Commercial team welcomes a high profile corporate lawyer

Withy King would like to take this opportunity to introduce Richard Baxter. Richard, who has taken up the position of Partner and Head of Oxford’s Corporate & Commercial Team, will mainly be based in our Oxford office, but will also maintain a presence in our London office dealing with his corporate finance clients.

Richard, who qualified as a solicitor in 1999, has previously practised in award-winning niche and Legal 500 rated City and West End firms. He has come to us from holding an active Partner role within Rochman Landau in London, a multi-national firm where he has gained a proven track record of both English and international deals. In addition to transactional experience, Richard brings to Withy King a strong knowledge of the technology and intellectual property sectors.

His transactional experience includes completion of a number nationally reported corporate deals including significant mergers and acquisitions (both solvent and distressed), AIM transactions, joint ventures, re-financings and restructurings.

Richard also provides commercial and operational advice to clients at all stages of their commercial development from start-up to listing and beyond, and in all sectors including automotive, healthcare, logistics, fashion, technology and natural resources.

His role at Withy King will see him focus on developing its corporate and commercial practice within Oxfordshire from the Oxford office.

Richard, who brings his own clients to Withy King, said: “I was keen to take on a fresh challenge and Withy King provided me with the ideal opportunity to join a thriving practice in one of the UK’s most sought-after regions.

“I think Oxford is ideally placed to exploit the next phase of economic development, both at home and abroad. I look forward to working closely with businesses in Oxford and further afield, sharing my expertise with them and in turn introducing Withy King’s wider services to my London-based clients.”

David Cavaliero, Head of the Corporate & Commercial team at Withy King, said: “Welcoming Richard to Withy King is a great coup for the firm – his experience in dealing with the varied commercial needs of his clients is absolutely first-rate and will drive the expansion of the commercial practice in Oxfordshire.”

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