23
Miller Hendry Business Start Up Pack Setting up a new business is an exciting and positive time, but careful planning is vital to ensure the new business is a success. This business start up pack is designed to help you cover the basics and contains guidance on the legal aspects of starting up a business.

BUSINESS START UP PACK v2 - … fileMiller Hendry Business Start up Pack Setting up a new business is an exciting and positive time, but careful planning is vital to ensure the new

  • Upload
    lengoc

  • View
    214

  • Download
    0

Embed Size (px)

Citation preview

Page 1: BUSINESS START UP PACK v2 - … fileMiller Hendry Business Start up Pack Setting up a new business is an exciting and positive time, but careful planning is vital to ensure the new

Miller Hendry Business Start Up Pack Setting up a new business is an exciting and positive time, but careful planning is vital to ensure the new business is a success. This business start up pack is designed to help you cover the basics and contains guidance on the legal aspects of starting up a business.

Page 2: BUSINESS START UP PACK v2 - … fileMiller Hendry Business Start up Pack Setting up a new business is an exciting and positive time, but careful planning is vital to ensure the new

Take Legal Advice! These comments are provided for guidance only. Each situation has to be examined on its own merits and circumstances and you should not therefore rely on the above without taking specific advice in relation to any particular matter.

www.millerhendrysolicitors.co.uk

Business Start Up Pack

Page 3: BUSINESS START UP PACK v2 - … fileMiller Hendry Business Start up Pack Setting up a new business is an exciting and positive time, but careful planning is vital to ensure the new

Miller Hendry Business Start up Pack

Setting up a new business is an exciting and positive time, but careful planning is vital to ensure the new venture is a success. Miller Hendry’s business start up pack is designed to help you to cover the basics and make the right choices for your business at the outset. A good way to guide your planning is to prepare and develop a comprehensive business plan either using a template such as that found on the BusinessLink website or by taking advice from organisations such as the Business Gateway. Putting a plan in place will help you to answer the questions posed below, such as the type of business structure you should use or the number and kind of employees you will need. All of these issues have legal ramifications, which is where Miller Hendry and the Business Start up Pack are designed to help. The pack contains guidance on the legal aspects of starting up a business. If required we can provided detailed assistance, such as employment contracts or company documentation. Contents 1. Sole trader, partnership or company? 2. Which premises are right for my business? 3. Relevant planning considerations when looking at premises. 4. Do I need to comply with any licensing requirements? 5. What terms and conditions should I use when dealing with customers/clients? 6. Special considerations for E-commerce. 7. Issues to consider when taking on employees. 8. Will I create intellectual property and if so how do I protect it? 9. How will my business be taxed? 10. Does my business need to be insured? 11. What needs to be in my contracts and how do I draft them? If you have further questions after reading this pack, please contact us to discuss how we can help: Contact Alistair Duncan, Partner, Head of Commercial Department [email protected] 01382 200 000 Alan Matthew, Partner [email protected] 01382 200 000 Kate Wyatt, Associate [email protected]

Page 4: BUSINESS START UP PACK v2 - … fileMiller Hendry Business Start up Pack Setting up a new business is an exciting and positive time, but careful planning is vital to ensure the new

Take Legal Advice! These comments are provided for guidance only. Each situation has to be examined on its own merits and circumstances and you should not therefore rely on the above without taking specific advice in relation to any particular matter.

1. SOLE TRADER, PARTNERSHIP or COMPANY

Businesses may trade as sole traders, partnerships or companies. The factors which influence how a trading organisation is set up include the number of people in the business, risk and liability and taxation. Broadly, the options are to trade as an unincorporated or incorporated business. Unincorporated Businesses Operating as an unincorporated business means that the business has no separate legal identity of its own. The risks and liabilities involved in running the business are taken on fully by the individuals who own the business.

Sole Trader The simplest form of business is where an individual sets up on their own, operating as a sole trader and is solely responsible for their business. Sole traders may trade under a business name but there is no requirement for any formal constitution or registration. Partnerships Where there are two or more persons carrying on business then they will be deemed to be operating as a partnership. This relationship is regulated by legislation and the partners have unlimited liability for the debts of the partnership. Whilst it is not a legal requirement, it is advisable to have some form of Partnership Agreement drawn up to formalise the relationship between the partners. Limited Partnerships These are partnerships set up under the Limited Partnerships Act 1907. This provides a method for partners to invest capital in a firm without the risk of liability. The limited partner however is not entitled to play any active part in the running of the business. Limited partnerships are most commonly found in farming partnerships. The downside to operating as an unincorporated business is that the risks and liabilities lie with the individuals who own the business. Against that is the benefit of a more relaxed regulatory regime compared to companies and there can also be some tax advantages.

Incorporated Businesses Limited Companies Many businesses trade as limited companies, the primary benefit being that a

limited company is a legal entity in its own right limiting the personal liability of the owners of the business. This is an important consideration if the business intends to employ staff, take on significant property interests or undertake major contractual obligations. A limited company requires to be formally incorporated under the Companies Acts and related legislation. Formal documentation requires to be drawn up such as a Memorandum of Association and Articles of Association, directors need to be appointed and incorporation of the company requires to be registered with Companies House in Edinburgh. There is then a formal regulatory regime that has to be

Page 5: BUSINESS START UP PACK v2 - … fileMiller Hendry Business Start up Pack Setting up a new business is an exciting and positive time, but careful planning is vital to ensure the new

Take Legal Advice! These comments are provided for guidance only. Each situation has to be examined on its own merits and circumstances and you should not therefore rely on the above without taking specific advice in relation to any particular matter.

followed and regular returns have to be made to Companies House. There are also other forms of company (e.g. limited by guarantee, without share capital) which may be considered.

Limited Liability Partnerships The limited liability partnership is designed as a mix between the traditional

partnership and a company. Partners’ liability is limited to the sum invested in the limited liability partnership.

What Should You Do Now?

• You need to consider the appropriate form of business. taking into account the number of people in the business, risk and liability and taxation.

What We Can Do For You?

• We can offer sound practical advice.

• We can help with the preparation of the necessary legal documentation for a Partnership Agreement, setting up a Limited Partnership, Limited Company, Limited Liability Partnership, etc.

• We have links with accountants who can advise on how taxation affects your

business. Useful Links Companies House:- http://www.companieshouse.gov.uk UK Department for Business, Innovations and Skills:- http://www.bis.gov.uk Business Gateway http://www.yourbusinessgateway.co.uk

Page 6: BUSINESS START UP PACK v2 - … fileMiller Hendry Business Start up Pack Setting up a new business is an exciting and positive time, but careful planning is vital to ensure the new

Take Legal Advice! These comments are provided for guidance only. Each situation has to be examined on its own merits and circumstances and you should not therefore rely on the above without taking specific advice in relation to any particular matter.

2. WHICH PREMISES ARE RIGHT FOR MY BUSINESS?

The vast majority of businesses require premises from which to operate. The nature of the business will determine the nature of the premises required. With modern technology many businesses can operate from home or from a virtual office. If a business is to expand, however, then business premises are usually required. Renting Many start up businesses do not have funds available to purchase property. It is therefore cost effective to rent. When renting property, the main points to look out for are:-

• The amount of rent: Is it reasonable?

• Are there service/management charges?

• What are the maintenance obligations?

• Is there provision for rent reviews?

• How long is the lease for?

• How can the lease be terminated?

We recommend that new businesses initially take professional advice from both solicitors and surveyors before entering into new leases. Landlords will draft lease documentation in terms that are favourable to the landlord that may result in unnecessary expense for the tenant. Other matters to look out for once a property has been selected include:-

• Does the property have Planning Permission for your proposed use?

• Is a personal guarantee required from you by the Landlord?

• Are rent free periods or other discounts available?

• Does the property require to be altered?

• Is there a deposit to pay?

• What insurance is required and who is responsible for insurance?

Page 7: BUSINESS START UP PACK v2 - … fileMiller Hendry Business Start up Pack Setting up a new business is an exciting and positive time, but careful planning is vital to ensure the new

Take Legal Advice! These comments are provided for guidance only. Each situation has to be examined on its own merits and circumstances and you should not therefore rely on the above without taking specific advice in relation to any particular matter.

Purchase The advantage of purchasing the property outright is that the new business will own the property and thus have control. If necessary, the property can be used by way of security for a bank loan. Before proceeding with a purchase, the purchaser should make sure that the property is suitable for their proposed use and that Planning Permission is available (or will be granted for the proposed used). We recommend that professional advice is obtained from both solicitors and surveyors at an early stage. Bank Lending Secured over the Premises Banks may be willing to provide funding on the basis that a security is granted over the property. This will add to the cost of the purchase as there will be costs incurred to the Bank by way of an arrangement fee, additional legal charges etc. What you should do now?

• Consider whether you require business premises or not. • If you are to work from home, consider whether Planning Permission is

required and what insurance is required.

• Consider whether you want to rent or buy.

• Speak to local surveyors and the Local Authority about the availability of suitable premises.

• Discuss commercial terms with potential landlords such as level of rent,

service/management changes, length of lease etc. You may wish to instruct your own surveyor to negotiate heads of terms for you.

What we can do for you?

• We offer sound, practical advice.

• We can advise on and negotiate the detailed terms of a commercial lease and complete the documentation to ensure the lease is valid and binding and to protect your interests.

• If you are purchasing premises we can attend to the necessary negotiation of

the contract of sale and purchase (missives) and subsequent conveyancing. Useful Links Business link Guide to Business Premises http://www.scotland.gov.uk/Resource/Doc/281542/0084999.pdf

Page 8: BUSINESS START UP PACK v2 - … fileMiller Hendry Business Start up Pack Setting up a new business is an exciting and positive time, but careful planning is vital to ensure the new

Take Legal Advice! These comments are provided for guidance only. Each situation has to be examined on its own merits and circumstances and you should not therefore rely on the above without taking specific advice in relation to any particular matter.

3. RELEVANT PLANNING CONSIDERATIONS WHEN LOOKING AT

PREMISES All new businesses need to ensure that the use of premises or land conforms to Town and Country Planning legislation. Local Authorities are primarily responsible for both planning and also for ensuring compliance with building standards. Local authorities each produce a development plan for their area. This plan provides the basis for all planning decisions or uses. Planning Use The use of your premises must comply with Planning Regulations. New businesses should check with their local planning authority and, if necessary, should apply for change of use (e.g. from office premises to retail premises). There are various “use” classes which are set out in the Town and Country Planning (Use Classes) (Scotland) Order 1997 and are as follows:- Class 1: Shops Class 2: Financial, professional and other services Class 3: Food and drink. Class 4: Business Class 5: General Industrial Class 6: Storage or distribution. Class 7: Hotels and hostels. Class 8: Residential institutions. Class 9: Houses Class 10: Non-Residential institutions Class 11: Assembly and Leisure. Where the use of property does not conform to the Planning Regulations, the local authority may take enforcement action and/or criminal penalties may be imposed. Planning Permission Planning Permission may be required in a number of situations:-

• Change of Use This is required where the use of a building is changing (e.g. from dwelling

house to office).

• Outline Planning Permission This is a first step to obtaining detailed planning permission. It allows an

application to be made (e.g. to build office premises) without incurring the cost of submitting detailed plans. If you are confident about planning permission being granted you can miss this step out.

Page 9: BUSINESS START UP PACK v2 - … fileMiller Hendry Business Start up Pack Setting up a new business is an exciting and positive time, but careful planning is vital to ensure the new

Take Legal Advice! These comments are provided for guidance only. Each situation has to be examined on its own merits and circumstances and you should not therefore rely on the above without taking specific advice in relation to any particular matter.

• Detailed Planning Permission This normally involves the lodging of detailed plans to allow full Planning

Permission to be granted. Building Regulations The Building Control Department of the local authority enforces the Building Regulations. This is in addition to Planning Permission. Where a new building is being erected, buildings are being altered (or demolished), then it is likely that a Building Warrant will be required. This is to ensure that any development conforms to the Building Regulations. Once the building/alterations are completed, the local authority will issue a Completion Certificate. If unauthorised alterations are carried out which do not conform with Building Regulations, the local authority can take enforcement action. In addition, there may be criminal penalties. We recommend that advice is sought from architects at an early stage in respect of both Planning Permission and Building Warrant Applications. What you should do now?

• Identify likely premises. • Check with the Local Planning Authority what Planning Permission is in place. • Check it meets your requirements. • Apply for Planning Permission (if necessary)

What we can do for you?

• Offer sound, practical advice. • Review the terms of any lease to identify planning or use restrictions.

• Advise on any title conditions restricting the use of the premises.

• Liaise with local surveyors and town planners.

Useful Links Business Link: http://www.businesslink.gov.uk/botg/action/detail?itemid=1073791627etype=resources A guide to the planning system in Scotland:- http://www.scotland.gov.uk/Resource/Doc/281542/0084999.pdf Planning aid for Scotland:- http://www.planningaidscotland.org.uk or try the local council where the property is situated.

Page 10: BUSINESS START UP PACK v2 - … fileMiller Hendry Business Start up Pack Setting up a new business is an exciting and positive time, but careful planning is vital to ensure the new

Take Legal Advice! These comments are provided for guidance only. Each situation has to be examined on its own merits and circumstances and you should not therefore rely on the above without taking specific advice in relation to any particular matter.

4. DO I NEED TO COMPLY WITH ANY LICENSING REQUIREMENTS?

Many new businesses will require a licence to operate. The majority of licences are dealt with either by the local Licensing Board or the Licensing Committee of the Local Authority. In addition, there are a number of licences (e.g. transport, healthcare matters, waste disposal, etc) issued by the Scottish or UK Government or Government Agencies and other statutory bodies. Sale of Alcohol The sale of alcohol is regulated by the Licensing (Scotland) Act 2005. To operate licensed premises (such as a public house, restaurant, night club, etc.) a Premises Licence requires to be in place. This in turn contains an Operating Plan which will set out how the business is to be run including opening hours. Licensed premises require a Premises Manager to be nominated. The Premises Manager must be the holder of a Personal Licence which is obtained from the Licensing Board. There are detailed requirements relating to the operation of Licensed Premises relating to training of staff, records kept etc. Civic Government Licensing The Licensing Committee of Local Authorities is responsible for the grant of a variety of licences which include: Taxi drivers Private car hire Second hand dealers Metal dealers Boat hire Street trader Market operator Public entertainment Indoor sports entertainment Late hour catering Window cleaners Sex shops Houses in multiple occupation Animals Gaming etc. Etc.

Page 11: BUSINESS START UP PACK v2 - … fileMiller Hendry Business Start up Pack Setting up a new business is an exciting and positive time, but careful planning is vital to ensure the new

Take Legal Advice! These comments are provided for guidance only. Each situation has to be examined on its own merits and circumstances and you should not therefore rely on the above without taking specific advice in relation to any particular matter.

What you should do now?

• Check the Licence and Permit checklist via Business Link (see below).

• Consider your Business plan and check if your business requires a licence. What we can do for you?

• Offer sound, practical advice. • Advise on licenses which may be required and guide you through the

formalities to obtain. • We can assist you to submit a licence application.

Useful Links Business Link: http://www.businesslink.gov.uk/LicencePermitChecklist.html

Page 12: BUSINESS START UP PACK v2 - … fileMiller Hendry Business Start up Pack Setting up a new business is an exciting and positive time, but careful planning is vital to ensure the new

Take Legal Advice! These comments are provided for guidance only. Each situation has to be examined on its own merits and circumstances and you should not therefore rely on the above without taking specific advice in relation to any particular matter.

5. WHAT TERMS AND CONDITIONS SHOULD I USE?

All businesses require to set out their terms and conditions. These terms and conditions form the basis of a contract between the business and its customers. Careful thought should be given to the terms and conditions and in particular they should be tailored to the new business rather than simply copied from another similar business. Terms and conditions should set out:- 1. Price. 2. Timescales (e.g. when goods/services are to be delivered). 3. Who the contracting parties are. 4. A clear specification of what is being provided (goods, services, payment

terms, etc.) 5. Provision for termination of contract. 6. Provisions on default/non-payment/non performance. 7. Any disclaimers/limitation of liability. E-COMMERCE There are special considerations for e-commerce. See section 6 for more information. What you should do now?

• Look at your business plan and consider who you will contract with.

• Consider what you are selling/producing.

• Create standard terms and conditions. • Check your terms and conditions meet your needs.

What we can do for you?

• Offer sound, practical advice.

• Assist you draft suitable terms and conditions. Useful links www.gov.uk/starting-up-a-business http://www.business.scotland.gov.uk

Page 13: BUSINESS START UP PACK v2 - … fileMiller Hendry Business Start up Pack Setting up a new business is an exciting and positive time, but careful planning is vital to ensure the new

Take Legal Advice! These comments are provided for guidance only. Each situation has to be examined on its own merits and circumstances and you should not therefore rely on the above without taking specific advice in relation to any particular matter.

6. SPECIAL CONSIDERATIONS FOR E-COMMERCE

There are specific regulations relating to E-Commerce. Websites Virtually all commercial websites are covered by the E-Commerce Regulations. The Regulations provide that specific information must be provided:- Applicable Law All websites should meet the laws of every member state in which its

consumers can buy its products. This can be important where local laws are different from the UK (e.g. in respect of cooling-off periods).

Minimum Information Service providers require to provide minimum information to customers

including:-

• Name, postal address and email address. • Company registration number. • Details of any trade or professional association. • VAT number. • Clear prices.

There are also specific provisions regarding text messaging, commercial

communications, unsolicited commercial email (SPAM), information to be given before orders are placed online, etc.

All new businesses should:-

• Examine their websites. • Consider whether they need to amend their terms and conditions. • Have suitable disclaimers in place. • Have insurance in place. • Assess their international exposure and amend content, if required.

Copyright Remember most information on other websites is copyright and cannot be

used without permission.

Consumer Protection Distance Selling Regulations The Distance Selling Regulations apply to distance contracts. These are contracts for the sale of goods or the provision of services concluded between a supplier and a customer and include orders made by catalogue, telephone, web-based teleshopping etc. The Regulations require information to be given to consumers including:-

• The identity of the supplier.

Page 14: BUSINESS START UP PACK v2 - … fileMiller Hendry Business Start up Pack Setting up a new business is an exciting and positive time, but careful planning is vital to ensure the new

Take Legal Advice! These comments are provided for guidance only. Each situation has to be examined on its own merits and circumstances and you should not therefore rely on the above without taking specific advice in relation to any particular matter.

• Costs. • Any cooling off period. • Written confirmation and additional information. • Right to cancel etc.

The most important provisions of the Regulations are that consumers are entitled to:-

• Receive clear information about goods and services before deciding to buy. • Confirmation of this information in writing. • A cooling off period of seven working days in which the consumer can

withdraw from the contract (subject to some exceptions). • Protection from credit card fraud.

What you should do now?

• Check that your website complies with the regulations. • Check that your terms and conditions meet your needs.

What we can do for you?

• Offer sound practical advice on the legal requirements of e-commerce. • Assist you to draft suitable terms and conditions. • Review your website and advise what action is required.

Useful links Business Link:- http://www.businesslink.gov.uk/bdtog/action

Page 15: BUSINESS START UP PACK v2 - … fileMiller Hendry Business Start up Pack Setting up a new business is an exciting and positive time, but careful planning is vital to ensure the new

Take Legal Advice! These comments are provided for guidance only. Each situation has to be examined on its own merits and circumstances and you should not therefore rely on the above without taking specific advice in relation to any particular matter.

7. ISSUES TO CONSIDER WHEN TAKING ON EMPLOYEES

When starting a business, your Business Plan should address staffing requirements. You should consider how many staff you will need, both at start up and as the business progresses, what their roles will be and what skills and experience they will need to have. Having thought these points through in the Business Plan, you should draft person and job specifications. These will help you in the recruitment and selection process. 1. Recruitment and selection When drafting the job and person specifications, be aware of your obligations under the Equality Act 2010 to avoid any discrimination on the grounds of protected characteristics such as race, age, disability, etc. Always check the job and person specifications to ensure they can be objectively justified as genuinely necessary to the job. Ensure when advertising that you do not use potentially discriminatory terminology, such as advertising for somebody who is young and active since this may result in actionable discrimination. When inviting candidates for interview, make any reasonable adjustments necessary to accommodate candidates with disabilities. Remember also that, except in limited circumstances, it is not possible to ask any health related questions before producing a short list of candidates or making an offer to a particular candidate. The EHRC Code of Practice provides helpful guidance on avoiding discrimination at the recruitment and selection stage. Ensure that any data collected in relation to candidates is stored appropriately in accordance with the Data Protection Act, for example, by ensuring that data is collected only for a legitimate purpose, is kept securely and for no longer than is reasonably necessary. 2. Eligibility to Work in the UK Employers should ensure that they do not employ anyone who is not legally entitled to work in the UK; otherwise penalties may be incurred of up to £10,000 per employee. You should check the UK Border Agency’s list of documents which can demonstrate the right to work in the UK, which documents must be provided before the employee starts work, for example, at a short listed interview. There is an employer’s helpline if you are unsure whether the documents produced are sufficient. Sensible checks include having a good look at the documents produced to ensure that they appear valid and genuine and have not been tampered with, or checking that photos and birth dates match the candidate’s appearance and match up with the information on the job application. 3. Written Statements of Terms and Conditions of Employment All employees are entitled to a written Statement of Terms and Conditions of Employment which must be provided either when the offer of employment is made or within two months of commencement of employment. Being clear on applicable terms and conditions at the outset can avoid countless problems and misunderstandings later on and time spent getting it right is time well spent. As a minimum the Statement must include:- • Name of employer and employee

Page 16: BUSINESS START UP PACK v2 - … fileMiller Hendry Business Start up Pack Setting up a new business is an exciting and positive time, but careful planning is vital to ensure the new

Take Legal Advice! These comments are provided for guidance only. Each situation has to be examined on its own merits and circumstances and you should not therefore rely on the above without taking specific advice in relation to any particular matter.

• Date of commencement of employment • Job title or description • Date when continuous employment began • Rate of remuneration • How often wages are paid • Normal hours of work • Holiday entitlement • Absence due to sickness, including provision for sick pay • Pension and pension schemes, whether contracting out certificate is in force • Length of notice • Length of fixed term, if applicable • Places of work • Applicable collective agreement • Any particulars regarding working abroad • Disciplinary and complaints procedure including the details of the person to

whom the employee can apply if dissatisfied with any disciplinary decision or regarding a grievance

The above is very much a bare minimum and you can also consider producing fuller contracts including, for example, clauses on: • Confidentiality • Protection of trade secrets and intellectual property • Restrictions on further employment to prevent employees poaching staff, poaching clients or customers or working in competition For more senior employees, you may wish to consider: • A full time and attention clause • Clauses opting out of the 48 hour working time limit, reciting that these employees have unmeasured working time or providing for garden leave To attract high calibre staff you may wish to consider offering additional benefits such as private health insurance, share ownership or bonus arrangements. If staff are to be directors, you should consider reporting obligations to Companies House and provision for Contracts of Employment to be terminated if and when directorships are terminated. It is also important that you have in place certain basic policies and procedures which will include: • Disciplinary and grievance procedure. • Equality policy. • Policy on sickness and absence. • Policy on telecommunications and computer use and possibly other policies such as maternity leave, paternity leave and parental leave. 4. PAYE Most new employers will need to register with HMRC, even if the employer is the only employee. Registration can be done online, by post, by phone or at an HMRC office. Once registered, new employers will usually also need to enrol for PAYE. After registration you will receive written details of your employer PAYE reference and Accounts Office reference number together with details on operating the PAYE system. In outline, you will need to choose and set up a payroll system and input

Page 17: BUSINESS START UP PACK v2 - … fileMiller Hendry Business Start up Pack Setting up a new business is an exciting and positive time, but careful planning is vital to ensure the new

Take Legal Advice! These comments are provided for guidance only. Each situation has to be examined on its own merits and circumstances and you should not therefore rely on the above without taking specific advice in relation to any particular matter.

information about your employees contained on their form P45 or 46 to identify tax payable. There are also record keeping requirements which you should comply with. What you should do now?

• Consider your staffing requirements in accordance with your business plan. • Develop job and person specifications, checking carefully for any potentially

discriminatory content. • Consider the terms you will offer to potential employees and embody them in

a Statement of Terms and Conditions of Employment to be provided when employees start work.

• Consider additional contractual terms which may be particularly relevant to

your new business such as confidentiality. • Ensure you comply with immigration rules and consider how to set up a

payroll system and register with HMRC as an employer and for PAYE. What we can do for you?

• Offer sound practical advice. • We can advise on job and person specifications and on avoiding

discrimination in recruitment, advertising and selection generally. • We can provide pro forma standard Statements of Terms and Conditions of

Employment, more comprehensive contracts for senior employees including provisions relating to Directorships and standard policies and procedures which can be used as they are or with amendments designed specifically to meet the needs of your business.

• We have links to HR professionals who can advise on day to day employment

issues and to accountants who can assist in payroll and PAYE systems. Useful Links The Equality and Human Rights Commission - http://www.equalityhumanrights.com/advice-and-guidance/new-equality-act-guidance/equality-act-starter-kit/ ACAS – http://www.acas.org.uk The UK Border Agency – http://www.ukba.homeoffice.gov.uk/business-sponsors/preventing-illegal-working/ Business Link – https://www.gov.uk/browse/employing-people

Page 18: BUSINESS START UP PACK v2 - … fileMiller Hendry Business Start up Pack Setting up a new business is an exciting and positive time, but careful planning is vital to ensure the new

Take Legal Advice! These comments are provided for guidance only. Each situation has to be examined on its own merits and circumstances and you should not therefore rely on the above without taking specific advice in relation to any particular matter.

8. WILL I CREATE INTELLECTUAL PROPERTY AND, HOW DO I PROTECT

IT?

All businesses own Intellectual Property. The most obvious example is the name of the business. The nature of the business will determine whether or not Intellectual Property forms a significant part of the business. Copyright Copyright exists in four main forms namely:- literary, dramatic, musical and artistic works. Any original work therefore is subject to the law of copyright. This is particularly important in respect of computer software, technical drawings (e.g. for architects, photographers) and the like. Copyright exists for a period of 70 years following the death of the author of the material. Trademarks Where a new business wishes to protect its brand it may wish to register a trademark with the Intellectual Property Office. It can be a sign or a logo or indeed a tune (such as Direct Line’s tune). Trademarks once granted last for 10 years and can be renewed thereafter. Patents Where a business invents either a new product or new process this can be protected by applying for a patent which can last for up to 20 years. To keep a patent in force, you must review it on the 4th anniversary and annually thereafter. Design Rights Designs are often protected by copyright. In addition, it is possible to apply for a design to be registered with the Intellectual Property Office. This gives exclusive rights to the design for a period of 5 years and the design can be renewed every 5 years up to a total of 25 years. Infringement of Intellectual Property Rights Where Intellectual Property Rights are infringed the aggrieved party can seek remedies through the courts. These are often referred to as “passing off” actions. What you should do now?

• Consider the nature of your proposed business: are you likely to create IP which you will need to protect?

• Consider which of the above categories it falls into.

• Consider whether you have a brand or logo you would like to develop or

protect What we can do for you?

• We offer sound practical advice on all aspects of intellectual property.

• We can advise on how best to protect your intellectual property and on appropriate action in the event of any infringement.

Page 19: BUSINESS START UP PACK v2 - … fileMiller Hendry Business Start up Pack Setting up a new business is an exciting and positive time, but careful planning is vital to ensure the new

Take Legal Advice! These comments are provided for guidance only. Each situation has to be examined on its own merits and circumstances and you should not therefore rely on the above without taking specific advice in relation to any particular matter.

• We have links to IP specialists who can assist with applications for patents, trade marks etc.

• We can draw up IP conditions to put in your terms and conditions and your

contracts of employment. Useful Links Intellectual Property Office:- http://www.ipo.gov.uk UK Copyright Service:- http://www.copyrightservice.co.uk

Page 20: BUSINESS START UP PACK v2 - … fileMiller Hendry Business Start up Pack Setting up a new business is an exciting and positive time, but careful planning is vital to ensure the new

Take Legal Advice! These comments are provided for guidance only. Each situation has to be examined on its own merits and circumstances and you should not therefore rely on the above without taking specific advice in relation to any particular matter.

9. HOW WILL MY BUSINESS BE TAXED?

Small businesses are taxed in a number of ways. Broadly speaking, sole traders and partnerships will pay income tax whilst incorporated companies will pay corporation tax. If the business is registered for Value Added Tax purposes then the effects of VAT will also have to be considered. Specialist advice should be sought from a suitably experienced accountant. We have links to a number of accountants who can advise further. What you should do now?

• Review your business plan to identify the business vehicle best suited and consequent tax implications.

• Seek specialist advice from an accountant on taxation and appropriate

business vehicle for your business.

• Consider whether you need to register with HMRC for taxation/VAT purposes. • Be aware of any deadlines for registration or payment of tax. • Identify any tax reliefs which may be available to you.

What we can do for you?

• We offer sound practical advice. • In advising on appropriate business structures we can advise on likely tax

implications, both personal and business. • We have links with local accountants experienced in individual and company

tax. Useful Links HMRC: www.hmrc.gov.uk http://www.hmrc.gov.uk/online/new.htm#2 Direct Gov: www.gov.uk/new-business-register-for-tax Income Tax Calculator: http://www.incometaxcalculator.org.uk

Page 21: BUSINESS START UP PACK v2 - … fileMiller Hendry Business Start up Pack Setting up a new business is an exciting and positive time, but careful planning is vital to ensure the new

Take Legal Advice! These comments are provided for guidance only. Each situation has to be examined on its own merits and circumstances and you should not therefore rely on the above without taking specific advice in relation to any particular matter.

10. DOES MY BUSINESS NEED TO BE INSURED?

Businesses should consider what insurance requirements they have including:- Employer’s Liability Insurance; Public Liability Insurance; Professional Indemnity Insurance plus specific insurance for business premises and contents. Different businesses face different risks and may require specific insurance to suit their needs. Most businesses in the UK that employ staff are legally obliged to have Employer’s Liability Insurance to provide cover against a claim from an employee. Public Liability Insurance covers compensation you have to pay a client, contractor, employee or member of the public in the event of accidental injury or property damage. Professional Indemnity Insurance will protect you if a claim is brought against you because of a problem with work that you have done. Your clients may require that you have Professional Indemnity cover or this may be necessary if you are applying for a tender. You should also consider what might happen to your business if you are unable to work after an accident. Personal Accident Insurance cover will pay your business a weekly amount should you or a key member of staff suffer an injury from an accident and be unable to work. If the accident is more serious then your business may receive a lump sum payment. Specialist advice should be sought from suitably experienced broker or using a guide such as that provided by Business Link’s interactive guide (see below) on what insurance may be required depending on your proposed business model. Whilst we cannot recommend any one insurance broker, we can put you in touch with those we work with. What you should do now?

• Consider your insurance requirements taking into account the number of employees you plan to employ, your type of business and whether you are an owner occupier or a tenant of business premises.

• Seek specialist advice from a suitably experienced insurance broker.

What we can do for you?

• Offer sound practical advice. • We can advise on likely insurance requirements based on the factors above

and can refer you to suitably qualified insurance brokers we work with.

Page 22: BUSINESS START UP PACK v2 - … fileMiller Hendry Business Start up Pack Setting up a new business is an exciting and positive time, but careful planning is vital to ensure the new

Take Legal Advice! These comments are provided for guidance only. Each situation has to be examined on its own merits and circumstances and you should not therefore rely on the above without taking specific advice in relation to any particular matter.

Useful Links Association of British Insurers: http://www.abi.org.uk – Insurance Advice for businesses.

Page 23: BUSINESS START UP PACK v2 - … fileMiller Hendry Business Start up Pack Setting up a new business is an exciting and positive time, but careful planning is vital to ensure the new

Take Legal Advice! These comments are provided for guidance only. Each situation has to be examined on its own merits and circumstances and you should not therefore rely on the above without taking specific advice in relation to any particular matter.

11. WHAT NEEDS TO BE IN MY CONTRACTS AND HOW DO I DRAFT THEM?

New businesses will enter into numerous contracts with a variety of parties. Care should be taken each time a contract is entered into and each contract will vary depending on who the contract is with or the type of agreement. This includes:-

• Employees – See Section 7 of this pack. • Clients or customers • Landlords of Premises • Suppliers of materials • Collaborative organisations;

Contracts with Customers Terms and conditions should be set out in writing (see Section 5 of this pack). The provisions of the E-commerce Regulations and Distance Selling Regulations should be adhered to (see Section 6 of this pack). There should always be a written record of an order and the terms of the contract. Suppliers Suppliers will normally have standard contracts. You should read through these. They will be drafted in favour of the supplier and you need to be satisfied that they are not unduly onerous. Occasional Suppliers Again, you should read through any standard contracts and terms and quotations. Ownership of Goods Any contract should detail whether or not the title of the property passes on delivery or on payment. What Should You Do Now?

• Consider who you will need to conclude contracts with and for what. What We Can Do for You

• Offer sound practical advice. • Advise on the content and effect of contracts offered by third parties. • Assist you to draft contracts and terms and conditions.

Useful Links Business Link: http://www.businesslink.gov.uk