The Small Business, Enterprise and Employment Act – How will affect you?

On 26th March 2015, the Small Business, Enterprise and Employment Act received royal assent. This Act aims to encourage more SME start-ups by reducing the barriers that they face in their drive to innovate, grow and compete. How does this affect you? You may be surprised!

Small and medium sized enterprises make up 99% of all businesses within the UK. The North-East has had one of the largest increases in SME start-ups in recent years! So this new Act will be very influential.

Although the Act came into force in March 2015, its provisions are being implemented in a staggered approach.

Here are some of the main provisions contained within the Act:

Corporate Transparency

This is a requirement for all companies to identify anyone within their company who has significant control and to then register this at Companies House. You will also need to keep a ‘People with Significant Control Register’. This will be publically available.

  • Significant control: is when someone
    • directly or indirectly holds more than 25% of the nominal share capital; or
    • directly or indirectly controls more than 25% of the votes at general meetings; or
    • directly or indirectly is able to control the appointment or removal of a majority of the board; or
    • actually exercises, or has the right to exercise, significant influence or control over the company; or
    • actually exercises or has the right to exercise significant influence or control over any trust or firm (which is not a legal entity) which has significant control (under one of the four conditions above) over the company.
  • Enforcement: A set of regulations have been published, alongside a consultation. We expect the provisions to come into force in April 2016.  From June 2016, companies can choose to keep their register at Companies House.
  • Aim: one of the key aims of the Act was to improve the transparency of ownership and control of businesses. In turn this was hoped to increase the trust in UK businesses and encourage more people to start-ups.

Simplification of the filing regime

Companies used to have to file an annual return with the Registrar of Companies on a set date each year. This relayed detailed information about the company such as its shareholders and share capital, but it tended to duplicate information which had already been given earlier in the year. Companies will now have to submit a confirmation statement instead.

  • Confirmation statement: Companies will not have to give duplicate information. Instead they will just have to give a confirmation that this information has previously been delivered to the Registrar as requested during the year or is being delivered with the confirmation statement.
  • Enforcement: This will come into force in June 2016. No set date on which the statement needs to be made, but companies will be expected to file one at least every 12 months. The new statement will detail any changes made since the last statement.
  • Aim: Hoped that it will reduce the administrative burden on companies.

Directors (including shadow directors)

  • Shadow directors: Shadow directors will have the same general duties as appointed directors.
  • Aim: to improve the standards of a shadow director to increase their accountability where certain standards are not met.
  • Enforcement: May 2015.
  • Definition of a shadow director: this has been changed by the Act. The previous definition provides that a person who gives advice in a professional capacity is a shadow director. This has been extended. It now includes that advice or guidance, directions or instructions given in the exercise of a function conferred by or under legislation is sufficient to satisfy the definition of a shadow director.
  • Aim: To ensure that those posing as a shadow director are now covered by this definition.
  • Enforcement: May 2015
  • Directors’ Day of birth: Directors are no longer required to include the day of their date of birth on the company’s public register of directors. But, the company is still required to send these details to the Registrar. The month and year will still be available for inspection, but not the date.
  • Aim: To give directors more privacy
  • Enforcement: October 2015
  • Consent to act as a director: Previously for someone to act as a director or secretary they needed to provide a ‘formal consent to act’. This was done by signing a paper form or via personal authentication or an electronic filing system. This has now been replaced with a statement.
  • Statement: When a director is appointed Companies House will add a statement that the person has consented to act as a director to the relevant appointment and incorporation forms. The company will then have to consent to this statement. Companies House will then write to all directors to make them aware of this new appointment and that it has been registered at Companies House. This makes the new director aware of their statutory duties and gives them a chance to object if they did not consent.
  • Enforcement: October 2015.
  • Corporate Directors: Normally a UK company must have at least one natural person as a director and could appoint corporate bodies as other directors. This will no longer be allowed.
  • Enforcement: This provision will come into force in October 2016, subject to further consultation. Existing corporate directors will cease to be directors a year after the provisions have come into force.

These issues will affect any company which falls into the bracket of a small or medium sized (or even micro) enterprises, In reality, this  accounts for most of the businesses in the UK. So it is likely that if you are a company and are reading this, these changes will affect you!

For more information about business vehicles, please click here. If you’d like to know more about the Student Law Office, please see more information here.

Emma StampThis blog post was written by Emma Stamp. Emma is an MLaw student at Northumbria University, working with the Business and Commercial firm at the Student Law Office. On graduation she hopes to secure a training contract with a firm that specialises in clinical negligence. Outside of University she enjoys baking, yoga and reading.

Which business medium is best for you?

Deciding to set up your own business can be an exciting yet daunting experience. You’ve come up with your business plan, but do you know what medium your business will take? Are you going to go it alone as a sole trader? How about a partnership? Maybe register as a company limited by shares?

This blog post will tell you about each business medium and provide you with the advantages and disadvantages of each one.

Sole Trader

A sole trader is someone who is self employed. They own their business by themselves and have completely responsibility for it. That doesn’t mean to say you would have to work alone, a sole trader can have employees.

Profits from a sole trader’s business forms part of that person’s taxable income. This is subject to income tax which is paid via a self-assessment each year

ADVANTAGES DISADVANTAGES
THE PROFITS OF THE BUSINESS ARE ENTIRELY YOURS – once taxes have been paid and any employee wages (if applicable), the remaining sum is yours to do with as you please. UNLIMITED LIABILITY – By far the biggest disadvantage of setting up as a sole trader is that liability for the businesses losses and debts falls entirely on you. If your business falls on hard times, you will be liable. This can include your home being at risk as well as personal savings and any other assets you have both inside and outside of the business. Also, if for any reason a customer sues the business, they are essentially suing you.
CONTROL – As the only owner of the business, you will have complete control over the running of it. Decisions will not have to be put to a vote or require approval from anyone else making it easier and faster to implement changes. FINANCE – Setting up as a sole trader can be expensive. You will need equipment, machinery and perhaps premises. These will need to be paid for out of your own money whether savings or a loan. Unlike  a company, you cannot sell shares in the business to raise money.

 

IMPROVED CUSTOMER SERVICE – It could be argued that as a smaller sole trader business you are able to offer a more personalised approach to your customers. This is because as the only owner you are a lot more involved in the business. It seems that you can develop relationships with customers, than can turn in to repeat loyal buyers as well as suppliers that can lead to cheaper rates. SELF-STARTER – As the only person involved in the business at least to start with, you will have to do every job required from sales to cleaning. At the outset you will be particularly busy and it is down to you alone to keep on top of everything. This inevitably means working long hours including evenings and weekends.
LESS RED TAPE – Setting up as a sole trader has the least amount of ‘red tape’ surrounding it. The only requirement is to inform HMRC of your business. Once that is done, you can start trading right away. DECISION MAKING – Although I’ve included this  in advantages, it can also be a disadvantage. As you make all the decisions, there is nobody to fall back on for help, or to blame if the wrong decision is made. The success or failure of the business rests on you. This can lead to a build up of pressure, particularly at the start whilst the business is developing.
PRIVATE DATA – Information about a sole trader is kept private. This is not the same for companies. REVERSE ECONOMIES OF SCALE – Sole traders are unable to take advantage of economies of scale in the same way companies and larger corporations, who can afford to buy in bulk. This can lead to being charged higher prices for stock which may be reflected on to your customers.
ACCOUNTS – As a sole trader all you are required to complete is a profit and loss account. Subsequently, accountants’ fees are usually lower than for completing company accounts. IF YOU DON’T WORK, YOU DON’T MAKE MONEY – This speaks for itself. If your business is closed, there will be no customer purchases. If there are no purchases, the business is not making money.
WORKING HOURS – As a sole trader, you decide when you want to go to work. If you decide you want a day off, you can take it. It has been said that the best part of being a sole trader is having the freedom to strike the perfect balance between work and social life.

Partnership

A partnership is where two or more people carry on business together. For tax purposes they are treated the same as sole traders in that the profits and losses are subject to income tax via each partner’s self-assessments each year.

Generally, each partner has equally responsibility and authority to run the business (unless stated otherwise in a partnership agreement) and the actions of one partner can bind the entire partnership.

Although not a requirement, most partnerships have a detailed partnership agreement setting out a range of terms of the partnership. This includes, how the business will be financed, which partner does what work, what happens if one partner dies and what happens if one or more of the partners wants to dissolve the partnership.

You can find out more about Limited Liability Partnerships here.

ADVANTAGES DISADVANTAGES
CAPITAL – As with a sole trader business, a partnership cannot sell shares in the business in order to raise funds to set up the business. However, with a partnership there are at least 2 people to contribute towards that initial start up fees. The more money that can be put into the business allows for better flexibility and more potential for growth. This in turn should hopefully lead to more potential profit. TAXATION – Partnerships are taxed in the same way as a sole trader. Each individual partner pays income tax on their share of the profits. This can be a disadvantage as partnerships usually have bigger profits than sole traders (due to the higher amount of capital first invested). This can lead to big tax implications for the partners.
LESS RED TAPE – Setting up as a partnership is generally quite easy. Much the same as for a sole trader, the only requirement is registration with HMRC. JOINT AND SEVERAL – Business partners are jointly and individually liable for the actions of the other partners. If one partner makes an error, or gets the business into debt, all the partners will be liable for that debt.
KNOWLEDGE – A partnership may benefit from the combination of complimentary skills of the two or more partners. There is a wider pool of knowledge, skills and contracts. Different partners can specialise in different aspects of the business. DISAGREEMENTS – Perhaps an obvious disadvantage of a partnership is the danger of disagreements between partners. One partner may feel that their idea is ‘better’ about a decision or how the business should be run. This can lead to disagreements that can harm both the business and the relationship of those involved.
FLEXIBILITY – Partnerships are quite flexible in terms of management. There is no interference from shareholders. You only need agreement from the other partner/s. UNLIMITED LIABILITY –  As with a sole trader, the partners of the business have unlimited liability for the losses and debt of the business. Although this liability could be split between the partners this could still be a large amount. This could lead to losing your home, personal savings and any assets within or outside the business.
SHARED RESPONSIBILITY – The pressure and weight of running the business does not rest on one person’s shoulders. It is shared equally amongst the partners. Rather than splitting the management and taking an equal share in each task, each partner may take on the full task that they excel at. For example, if a partner is particularly good at figures, they may deal with the book keeping. Whereas another may be good at sales and so deal with that aspect of the business. PROFIT SHARING – The profits of the business are shared equally between the partners (unless stated otherwise in the partnership agreement) This can lead to issues if one partner is not putting as much effort into the running of the business as others but still getting the benefits.
DECISION MAKING – As there is more than one person making decisions, the partners of the business can help each other out when necessary. Each partner can bring something different to the table and these can be moulded together to achieve the best outcome for any problem the business may face. DECISION MAKING – When decisions are made, all of the partners will need to agree in order for things to be done. This reduces the flexibility of the management of the company slightly, particularly to sole traders. However, this is still greater flexibility than with limited companies.

Private Company Limited by Shares

The biggest difference with a company from the other mediums is that they have their own legal identity. This means that the company’s finances are not linked to your personal finances. The company is responsible for its own debts and liabilities but also keeps any profit it makes (after payment of corporation tax). A company can then pass these profits on to its shareholders through payment of a dividend. However, this is not compulsory, but it is the only way to personally benefit from the profits of the company.

The day to day running of the company is done by directors (which can vary from one director to quite a few) but any major decisions must be approved by the shareholders (again this can vary from just one shareholder to hundreds). Shareholders are able to purchase shares in order to raise capital to put back in to the company.

A private company limited by shares must be registered with Companies House and can involve quite a bit of paperwork and cost.

ADVANTAGES DISADVANTAGES
LIMITED LIABILITY– By far the biggest advantage of setting up your business as a private company limited by shares is that each shareholder is only liable for the amount unpaid on their shares. This is For example: if you had 10 shares at a cost of £3000 and you have so far only paid £2000. If the company fell into difficulty, your liability would only be £1000, even if the company had debts of £100,000. CONTROL – Although a company has directors who deal with the day to day running of the company, any big or important decisions have to be approved by the majority of the shareholders. This can be difficult to achieve, particularly when there are a large number of shareholders.
CAPITAL – A company limited by shares can increase its share capital and allot these new shares in order to raise money that can be put back into the company. This makes it a lot easier to finance than a sole trader or partnership who have to use their own money to fund the business. RED TAPE – Setting up a company limited by shares involves a lot of red tape and is covered by strict registration rules. It must be registered with Companies House which costs £15. There is also quite a lot of paper work to be completed that is quite detailed.
STATUS – A professional and corporate image is created by setting up a private limited company. This can boost the value of the business as bigger corporations and industries are likely to do business with a company rather than a partnership and particularly with a sole trader. This is because private limited companies are considered to be more established, credible and committed. PRIVACY – The accounts of the company, as well as the names of the shareholders and directors and also the directors’ personal addresses are all in the public domain

Dividends – Dividends are payments made to shareholders each year out of the profits the company makes. Although these are not compulsory, if the business is making large profits yet not paying dividends, questions will be raised. Unlike for a sole trader and partnerships, profits do not go directly to you. Once dividends are paid, any surplus profit is reinvested into the company.

CONTINUITY – The company is not affected by a change of shareholder or director. The company will continue regardless. It is not affected by the death either a shareholder or a director. The only way a company can cease is through liquidation, administration or winding up. TAXATION – Taxation for a limited company is complicated. A private limited company has its own separate legal personality and so tax is not paid via income tax as it is for a sole trader or partnership. Instead, a company pays corporation tax which can be complicated. This can lead to higher accountancy fees. Each shareholder will still have to pay income tax on any dividend they receive each year via self-assessment.

 

Not sure which business medium is right for you? Why not contact the Student Law Office to see if we can help? 

This post wasAbbie written by Abbie Swales. Abbie is a final year MLaw student at Northumbria University who currently works in a Business and Commercial Firm with the university’s Student Law Office. After graduating from university, she hopes to obtain a training contract within a commercial law firm. Outside of university, she enjoys watching Formula 1, baking and spending time with friends.

Don’t be caught out by fake business registers!

Have you ever registered your business name on a so called ‘legally protected business register’?

The government has recently warned that many people have received unsolicited invitations from companies offering services to help them protect their business or trade name in return for a fee.

These invitations are often official-looking and many people feel obliged to register with them to protect their business name. The fees are greatly in excess of official fees. There is usually a register, but sadly that register has no legal status whatsoever. It is merely a list. Often the small print on the invoice will say this, but once fees are paid it is too late.

There are sadly many companies purporting to be official UK company directories/registers. Companies House is the only official register for companies. It is a reliable and legitimate register of information regarding all registered companies in the UK. A company registered with any another “register” will not be considered a registered company.

If you are concerned about someone copying your trade name or logo, you should consider protecting it as a registered trade mark. Please be aware that the only official place to register a trade mark in the UK is via the Intellectual Property Office. The Intellectual Property Office has recently taken action against companies such as “Patent and Trademark Office” and “Trade Mark Renewal Service Ltd”, who were sending businesses letters telling them to renew their trade marks.

The Intellectual Property Office is the only official body which can issue a reminder to renew a UK trade mark. If you receive a reminder to renew your trade mark it will look like this:

IPO

If you receive a misleading invoice the Intellectual Property Office would like you to let them know. Contact them at: misleadinginvoices@ipo.gov.uk.

Additionally, there is no official register for copyright protection. Copyright works are protected simply because they are copyright works, without any need to undergo formal registration. Websites offering registration of your copyright will be a scam website and will not have any legal standing.

So, if in doubt please contact Companies House or the Intellectual Property Office, or seek the advice of a solicitor. It may save you unnecessary costs. The Student Law Office has advised clients in the past on this issue – please see this page for more details of our free service.

This blog post was brought to you by Alex Tomlinson and Bethanny Bamber.

Alex (left) and Bethanny (right) are both currently studying the MLaw degree at Northumbria University and are working in a Business & Commercial firm within the Student Law Office. In the future, Alex plans to secure a training contract and hopes to specialise in intellectual property. Bethanny has recently been offered a training contract in the consumer litigation department of a high street firm in Carlisle.

AlexBeth