Member News

Ed Savory, an Associate in Leathes Prior’s Franchising team, attended a forum of bfa Affiliates in London on Tuesday 16th October 2012. The bfa Affiliates are accredited professional advisers made up of lawyers, accountants, bankers, consultants and others who have demonstrated their expertise in franchising. The bfa Affiliates meet quarterly to discuss current market trends and certain “hot topics”.

The following two key legal topics were discussed at the latest Forum:

Limitations on franchisor liability

It had recently been brought to attention of the bfa Quality Standards Committee that there are a growing number of franchise agreements including clauses which seek to limit the franchisor’s liability for any claim made by a franchisee to an unreasonable degree.

For example, there have been cases of limitations capping the franchisor’s liability to an amount equal to the money paid by the franchisee to the franchisor in the preceding 12 months, or to a fixed amount linked to the initial fee, with specific exclusion made for liability for loss of profits. Conversely, the liability of the franchisee is usually unlimited.

The enforceability of such clauses is questionable as there are statutory restraints on including certain exclusions in commercial contracts under the Unfair Contract Terms Act 1977. In other words the limitation of liability must be reasonable. In assessing reasonableness, factors such as (a) the relative bargaining positions of the parties (franchisor and franchisee), and (b) whether the term in question is a fair and reasonable one to be included in the circumstances when the franchise agreement is signed, will need to be considered.

This is not a simple matter and it is important to have regard to the entire context of the franchise arrangement in question including the extent to which the franchisee’s liability is limited. For example, it is quite common to see franchisee liability limited to the management service fees which the franchisor would have received during the remainder of the term less the costs the franchisor would have incurred.

Nevertheless, the general consensus was that capping franchisor liability is not reasonable or acceptable. The franchisor must be responsible for the viability of its business system to at least give the franchisee the opportunity to run a profitable business. It was noted that the franchisor’s liability is in any event likely to be capped by the nature of the business structure through which it operates due to the legal nature of limited liability companies and wholly owned subsidiaries.

It is anticipated that a formal Technical Bulletin will be issued by the bfa in due course.

Disclosure requirements and the bfa Guide to the Code of Ethics

Under the bfa’s Code of Ethics (with which all bfa member franchisors must comply) paragraph 3.3 provides as follows:

3.3 In order to allow prospective individual franchisees to enter into a binding document with full knowledge, they shall be given a copy of the present Code of Ethics as well as full and accurate written disclosure of all information material to the franchise relationship, within a reasonable time prior to the execution of these binding documents.

In addition, the bfa has just published a revised Guide to the Code of Ethics which along with the Code is available from the bfa’s website www.thebfa.org.

There was a general view expressed that many franchisors do not strictly comply with the Code in providing prospective franchisees with sufficient information and/or a copy of the Code. This was not considered to be a major issue as the franchisors are often best placed to know the extent of information they need to disclose. For this reason the Code is not prescriptive as to exactly what information must be disclosed. The Guide does provide the minimum information which should be provided, being:

• the business and financial position of the franchisor
• the people involved in the franchise company
• the franchise proposition
• the franchisees
• the financial projections
• the contract

As well as breaching the Code, the franchisor may be at risk of a claim for misrepresentation if it fails to provide sufficient information to new franchisees. It is also worth noting that franchise agreements typically include an entire agreement clause that seeks to exclude liability for any pre contractual information provided to the franchisee.

All these factors must be borne in mind when considering disclosure and it is recommended that professional advice is sought in order to ensure that the franchise offering is compliant.

Other matters discussed

In addition to the above, the Forum also discussed:

• current market trends
• Affiliate presence on the bfa website
• feedback from The National Franchise Exhibition
• latest bfa news

Professional Support Lawyer Elizabeth Stevens and Trainee Solicitor Laura Tanguay report on the Government’s new ’employee-owner’ proposals.

What are the proposals?

At the Conservative Party conference earlier this month, the Chancellor of the Exchequer, George Osborne, announced plans for a new kind of employment contract.

Under the scheme, participating employees will exchange some of their employment rights for part ownership in the form of shares in the business they work for. Those participating will be classed as ’employee-owners’.

The shares given to the employee must be valued between £2,000 and £50,000 in order to qualify for the scheme and will benefit from capital gains tax exemption on any profits.

Legislation introducing the new employee-owner contract is planned to be implemented later this year with the aim that businesses can utilise these contracts from April 2013. At the moment, we have very few details of the mechanics of the scheme and what will happen to the shares when an employee-owner leaves or is dismissed. The Government has stated that it will consult on the finer details of the contract later this month.

Which rights are surrendered?

In exchange for shares, it is proposed that employee-owners will surrender their rights:

• to claim unfair dismissal (this will presumably only apply to claims for ‘ordinary’ unfair dismissal rather than automatically unfair dismissal, for example relating to pregnancy or trade union membership); • to a redundancy payment; • to request flexible working; and • to request time off for training.

The Government has also indicated that employee-owners will be required to provide 16 weeks’ notice (rather than the usual 8 weeks’ notice) upon returning from maternity leave. It should be noted, however, that the requirement to give notice to return from maternity leave only applies if the employee wants to return early.

The employee’s perspective

The Chartered Institute of Personnel and Development (CIPD) has urged the Government to abandon its proposals, insisting that the scheme is an unnecessary “watering down [of] employment rights”. It warns that “employees have little to gain by substituting their fundamental rights for uncertain financial gain” and has expressed concern about job insecurity created by a “two-tier labour market”.

Although the new scheme will be voluntary for existing employees, an employer may make offers of employment conditional upon accepting employee-owner status. In a competitive market, some may therefore find that they are left with no other option than to accept this type of contract.

The employer’s perspective

The Government claims that the scheme will create the “flexible workforce” required by small businesses. The CBI has given the proposals a cautious welcome, however, suggesting that it will be a niche idea and not relevant to all businesses.

It may be regarded as more affordable for a business to ‘buy out’ an employee’s rights for £2,000, given that it is not uncommon for compromise agreements and tribunal hearings to cost significantly more than this. In that sense, the scheme can be viewed as a new form of insurance for employers. However, the CIPD has queried whether “inviting employees to sign away basic employment rights will deliver the motivated, driven, high performing workforce that small firms need”. Arguably, a dedicated and secure workforce may well provide more fruitful in the long run.

Conclusion

As the old adage goes, the devil will be in the detail. Until the proposal is fleshed out in the full consultation, it is difficult to predict what real impact the scheme will have on the UK employment sector. Look out for our further report on this proposal once the consultation has been issued.

A copy of the Government’s press release is available here.

Steeles Law’s Head of Planning and Environment David Merson looks at the Coalition’s proposals to amend the Community Infrastructure Levy (“CIL”) Regulations to correct the anomalies currently encountered.

Draft regulations amending the CIL Regulations have been laid before Parliament and published this week.

The main changes relate to s73 variations in order to ensure that CIL would not be payable twice for the same development. In addition there is confirmation that CIL will not be payable on planning permissions replacing extant and unimplemented permissions granted before 1October 2012.

It is interesting to note that there is at present no provision in the draft amended Regulations for the application of CIL monies towards the provision of Affordable Housing which will, at least for the moment, still have to be addressed and negotiated through the s106 Planning Obligation mechanism. Furthermore, there is no provision for the passing of a “meaningful proportion” of CIL funds received to neighbourhood bodies. Both of these potential amendments had previously been floated by the Government earlier this year.

The amended Regulations are expected to come into force shortly (possibly as early as mid November) but will not apply retrospectively.

The draft Regulations can be viewed here.

Note however that the amended Regulations are in draft and it is therefore still possible that there may be some further changes before they finally come into force.

The main proposed amendments are as follows:

Section 73 issues

Under the current Regulations, CIL may be payable on both the s73 permission as well as on the original planning permission. The new draft Regulations change this by the removal of the double charging element.

If a charging schedule is in place both at the time the original planning permission is granted and the time a s73 permission is granted, CIL will be payable only once but on the following basis:

• Where the CIL charge calculated at the time of the original permission is the same as the CIL charge calculated at the time of the s73 permission, CIL will be payable on the chargeable development under the original planning permission only. • If there is a change in the CIL charge between the original planning permission and the s73 permission, and if that change is due to a change in a condition under the s73 permission, CIL will be payable only on the chargeable development which is the most recently commenced or re-commenced chargeable development. • For the purposes of these s73 calculations, the date on which the s73 permission “first permits development” should be regarded as the same as the date at which the “planning permission first permits development” for the original permission.

It will be possible to off-set CIL already paid against any new charge in circumstances where a CIL payment has already been made in relation to the original permission, and the charging authority issues a new liability notice in relation the s.73 permission because the CIL liability has changed.

Transitional provisions provide that if a planning permission is granted when there is no CIL charging schedule in place, and a later s73 permission is granted when there is a CIL charging schedule in place, the CIL charge will be:

• CIL payable on the chargeable development under the s73 permission minus the CIL that would have been payable under the original permission (using, for purposes of calculation, the charging schedule in force at the time of the s73 permission).

A CIL charge will therefore only be incurred if the s73 permission results in an increase in CIL payable.

Replacement Permissions to allow extension of time to implement

‘Replacement’ planning permissions can be granted where the original permission was granted on or before 1st October 2010, is still extant and is unimplemented (see article 18(1) of the (Town and Country Planning (Development Management Procedure) (England) (Amendment No 2) Order 2012).

CIL will not be chargeable where the original permission was granted before a charging schedule was in place and the replacement permission is granted (under Article 18(1)) when a charging schedule is in place.

Development under “neighbourhood development orders”

The CIL Regulations will apply to development consented under a neighbourhood development order (see s61E of the Town and Country Planning Act 1990, as amended by the Localism Act 2011). This means that CIL is potentially payable.

Regulation 40 formula correction

The amended Regulations correct an error in the formula in Regulation 40 the effect of which is to ensure that there will be no overcharging for development involving the retention of some existing buildings and the demolition of others.

If you require further information or advice on any issues raised in this article or any other planning and environmental matter please contact David Merson on 020 7421 1720 or [email protected]

Top chef Galton Blackiston’s prestigious Morston Hall hotel and restaurant has become the 900th business to sign up to an award-winning project which helps Norfolk firms cut costs while reducing carbon emissions.

The REV ACTIVE project has so far concentrated on providing free, confidential and impartial support to businesses in the A11 corridor, but it is now being offered to businesses in the north of the county thanks to a partnership with North Norfolk District Council.

Morston Hall, near Blakeney, was among the first North Norfolk businesses to take up the offer of a free business review.

“It is part of our commitment to our business to ensure that we are sustainable in everything we do,” said Mr Blackiston, whose restaurant is Michelin-starred and has three AA rosettes. “This has always been clear through our policy of local food. When it comes to the business our energy consumption is sizeable, and as these costs are only set to continue grow it is important we do everything we can to manage these.

“REV ACTIVE has identified a number of things that could make a significant saving to our business, many of them at low cost, and the fact there is a grant towards these initiatives is very welcome indeed.”

The project has hit some significant milestones in addition to that of seeing 900 businesses sign up to its free website providing information on how to become more resource-efficient. More than 300 free business reviews have taken place, highlighting potential savings of more than £3m plus around 12,000 tonnes of carbon emissions. These businesses have further benefited from grant funding worth more than £150,000. North Norfolk District Council Councillor John Lee commented: “Projects like REV ACTIVE provide business owners with free impartial advice as to how they can cut costs, and are proven to help businesses grow. REV ACTIVE enables us to really help businesses in these uncertain times, and puts them on a strong footing going forward. We would now like to see more businesses in North Norfolk follow that lead, sign up, save themselves money and benefit our environment. “

REV ACTIVE has European funding, and has been managed and delivered in Norfolk by Breckland Council, in partnership with Norfolk County Council. Following the project’s extension into North Norfolk, organisers are confident it can help more and more business owners to cut costs.

REV ACTIVE has helped businesses from a diverse range of sectors – from companies in the hospitality and leisure sector to manufacturers and professional services.

If you think your business could benefit from a free, impartial review call 01362 656808, email [email protected] or visit www.revactive.co.uk.

The Information Commissioner’s new powers to impose fines of up to £500,000 for serious breaches of the Data Protection Act 1998 (the Act) or of the Privacy and Electronic Communications (EC Directive) Regulations 2003 (Privacy Regulations) have now been widely reported. So far this year the Information Commissioner has been consistent in issuing at least one Monetary Penalty Notice (MPN) per month with fines ranging in value from £60,000 to £325,000. However, for most businesses the circumstances which can lead to the issuing of an MPN remain something of a mystery.

This article aims to shed some light on the circumstances in which the Information Commissioner may exercise its powers to issue a MPN and to outline some key steps which businesses can take to minimise the chance of a MPN being issued against them.

The Criteria for Issuing an MPN

In order to issue a MPN the Information Commissioner must be satisfied that:

(i) the Data Controller has seriously contravened the Act or the Privacy Regulations; and

(ii) the contravention was likely to cause substantial damage or distress and either:

(a) the contravention was deliberate; or

(b) the Data Controller knew or ought to have known that there was a risk that the contravention would occur and that it would be likely to cause substantial damage or distress but still failed to take reasonable steps to prevent it from happening.

When deciding whether this test has been satisfied the Information Commissioner will apply the following rules:

A serious contravention can arise as the result of a one off breach of the Act or Privacy Regulations or following a series of breaches.

The term damage refers to financial loss suffered by an individual whilst the term distress covers injury to feelings or anxiety suffered by an individual as a result of the contravention. If the damage or distress caused was considerable in importance, value, degree, amount or extent it will be deemed as substantial.

A contravention will be deemed to be deliberate if any one of the following conditions is fulfilled:

•the contravention was premeditated •the person concerned was aware of and did not follow specific advice published by the Information Commissioner or others and relevant to the contravention •the contravention followed a series of similar contraventions by the same entity and no action had been taken to rectify the cause of the original contraventions. A Data Controller is considered to know or ought to have known that there was a risk that the contravention would occur if:

•the likelihood of the contravention should have been apparent to a reasonably prudent person •the person concerned had adopted a cavalier approach to compliance and failed to take reasonable steps to prevent the contravention •the person had failed to carry out any sort of risk assessment and there is no evidence, whether verbally or in writing, that the person had recognised the risks of handling personal data and taken reasonable steps to address them. Where the Information Commissioner believes that the conditions for issuing a MPN have been met, a number of factors will be considered in deciding the level that the MPN will be set at. These will include whether the contravention was a one off or part of a series of similar breaches, whether there was a deliberate lack of cooperation and what steps were taken once the Data Controller became aware of the breach.

A summary of the MPNs issued so far this year is set out below to illustrate how the Information Commissioner has applied these criteria in practice.

MPN’s Issued in 2012

October 2012: a MPN for £70,000 was issued to Norwood Ravenswood Limited following the loss of a package of highly sensitive information about the care of 4 young children that was left on the street outside a London home for collection by the occupant upon their return home. By the time the occupant returned home the package had already been removed and it has not yet been located.

September 2012: A MPN for £250,000 was issued to Scottish Borders Council after pension records relating to former employees were found in an overflowing paper recycle bank located in a supermarket car park.

August 2012: A MPN for £175,000 was issued to Torbay Care Trust following the publication of sensitive personal information about 1,373 employees on the Trust’s website.

July 2012: A MPN for £60,000 was issued to St George’s Healthcare NHS Trust after sensitive medical details concerning a vulnerable individual were sent to the wrong address.

July 2012: A MPN for £150,000 was issued to Belfast Health & Social Care Trust after the Trust failed to report an incident compromising sensitive personal data relating to thousands of patients and staff to the Information Commissioner.

June 2012: A MPN for £90,000 was issued to Telford & Wrekin Council following two breaches of the Act. A report containing confidential and sensitive personal data was sent to the sibling of the child concerned instead of its mother. Whilst this incident was being investigated a second incident was reported to the ICO concerning inappropriate disclosure of foster carer names and addresses to a child’s mother. Both children concerned had to be re-homed.

June 2012: A MPN for £325,000 was issued to Brighton & Sussex University Hospitals NHS Trust after hard drives sold on an internet auction site were found to contain highly sensitive personal data belonging to ten’s of thousands of patients and staff.

May 2012: A MPN for £90,000 was issued to Central London Community Healthcare NHS Trust after sensitive personal data was faxed to an incorrect number. The contravention was repeated on numerous occasions over a number of weeks and concerned personal data relating to 59 data subjects.

May 2012: A MPN for £70,000 was issued to London Borough of Barnet after a burglary at an employee’s home led to the loss of sensitive information relating to 15 vulnerable children.

April 2012: A MPN for £70,000 was issued to Aneurin Bevan Health Board after a sensitive report containing details relating to a patient’s health was sent to the wrong person.

March 2012: A MPN for £70,000 was issued to Lancashire Constabulary after the discovery of a missing person’s report containing sensitive information about a 15 year old girl.

February 2012: A MPN for £80,000 was issued to Cheshire East Council after an email containing sensitive personal information was inadvertently distributed to 180 unintended recipients.

February 2012: A MPN for £100,000 was issued to Croydon Council following the theft of a bag containing papers relating to the care of a child sex abuse victim from a London pub.

February 2012: a MPN for £80,000 was issued to a County Council after details of allegations regarding a parent and the welfare of their child were disclosed to the wrong recipient.

January 2012: A Monetary Penalty of £140,000 was issued to Midlothian Council after sensitive personal data relating to children and their carers were disclosed to the wrong recipients on 5 separate occasions.

Practical Steps to Avoid MPNs

The key to avoiding a situation arising which may result in a MPN being issued against you is to ensure that you have solid data protection practices in place and, crucially, that you have instilled a culture of data awareness and sensitivity throughout your organisation. The majority of the MPNs issued this year could have been avoided had the individuals concerned been trained to follow data handling procedures or to simply apply some everyday common sense when handling data. Some key steps for businesses to take to minimise the risk of an MPN being issued against then are:

•conduct a data protection risk assessment to identify the data risks within your business and the steps that can be taken to address these •put in place appropriate policies, practices and procedures to ensure that data is handled in accordance with the Act and the Privacy Regulations and specifically address any particular risk areas and review and update these regularly •ensure that everyone within your business has had appropriate data protection training for the role they carry out and knows what policies, practices and procedures you have in place, where these can be found and who within the organisation they should address any questions or concerns to •maintain a written record to evidence the compliance steps that you have taken •consider whether you need to implement any technological measures to ensure the security of your data such as the use of encryption •pay particular attention to data protection issues where personal data of large numbers of individuals or sensitive data is concerned •keep an eye on the Information Commissioner’s Office website (www.ico.gov.uk) and review material issued by any relevant regulatory or advisory bodies for new guidance or codes of practice that may be relevant to your business and ensure that you apply these •take immediate action to resolve any known issues such as problems with IT systems •if you become aware of any suspected data breach take legal advice and contact the Information Commissioner’s Office immediately If the Worst Should Happen…

If you find yourself facing a MPN following a data breach, it should not come as a shock when it eventually lands on your desk. By the time the MPN is issued you should already have been through a period of communication with the ICO regarding the breach and are likely to be well aware that a MPN is on the cards. However, even at the stage where the breach has already occurred there are steps that you can take to mitigate the risk to your business:

•be pro-active in reporting breaches, taking legal advice and instigating your data breach procedures at the earliest possible stage •take any action appropriate to mitigate the effect of the breach •co-operate with the Information Commissioner both in assisting with any investigation into the breach and in following any suggestions that they make for mitigation of damage •you will receive a Notice of Intent and have a chance to make representations on this before the MPN is issued – find a legal advisor who can help you make appropriate representations •you can appeal a MPN and should ask your legal advisor to assist you in identifying any grounds of appeal that you may have and, if appropriate, in following the appeals procedure

On Friday, November 9th, Wymondham College is holding a “Futures” event at the Kings Centre in Norwich. This is a careers information day aimed at providing year 10 GCSE students (of three local schools) with information about routes into career opportunities in various sectors before they choose their post-16 study options.

The day runs from 10am-3pm, and we’re looking for speakers for thirty-minute slots that would run throughout the day which students would sign up to attend.

The aim of the talks would be to provide students with information about the various routes into your sector of employment, from apprenticeships, A-levels, degrees and vocational qualifications through to the ‘soft skills’ they would need to succeed, such as communication or presentation skills.

We can offer various time-slots to suit what works best for you:

10.45 – 11.15 11.30 – 12.00 12.00 – 1.00 = lunch break, although some talks can be scheduled during this time if contributors wish. 1.00- 1.30 1.45 – 2.15 2.30 – 3.00

Please get in touch if you are interested in speaking or hosting a stall.

Callie Oatridge Marketing and Development 01953 609000 ext 4385[email protected]

Enter the business card draw at the Bigfork stand at this Thursday’s B2B Exhibition and you could win a brand new Kindle. The Bigfork experts will also be available to discuss all things digital. See you there.

The long-heralded automatic enrolment of workers into pensions has finally commenced for the largest employers, with effect from 1 October 2012. Employment Principal Lorna Townsend provides an overview.

The requirement to automatically enrol all eligible workers into a qualifying pension scheme will eventually apply to all employers, but is being gradually phased in with the largest employers (120,000 or more employees on the payroll as at 1 April 2012) required to comply with the new duty from 1 October 2012.

Employers will be required to make minimum employer contributions into a scheme, or provide a minimum level of benefits. A qualifying scheme can either be an existing pension scheme (provided it meets the necessary qualifying conditions), a new scheme set up for this purpose by the employer, or a scheme set up by the Government known as NEST (National Employment Savings Trust).

Eligible jobholders must be automatically enrolled into a pension scheme; non-eligible jobholders may also ‘opt-in’ if they choose to do so. Employers must also provide information to workers about their new rights, generally within one month of the worker’s automatic enrolment rights arising.

Workers will have a statutory right to opt-out of the scheme within one month of becoming active members of the scheme, and will be entitled to a refund of any contributions. Workers cannot opt out of the scheme in advance of being automatically enrolled. Eligible jobholders who opt out of a scheme must be automatically re-enrolled every three years, and will have to opt-out again if they don’t want to stay in the scheme.

Automatic enrolment will apply to all employers over the next five years or so. The next staging date (for employers with between 50,000 and 120,000 employers) is 1 November 2012. Employers should check the applicable staging date for their organisation on the Pensions Regulator website.

The penalties for not complying with this new duty are severe, and employers should ensure that they take the necessary steps to comply as a priority.

Norfolk hoteliers, caterers and hospitality establishments will be well catered for, when a new exhibition opens at the Norfolk Showground in February 2013 Specialist Hospitality marketing company, 4HM Ltd, has announced plans to launch the Norfolk Catering and Hospitality Exhibition on Wednesday 13th and Thursday 14th February next year.

From breweries and crockery suppliers to linen services, catering equipment and fresh produce, the two day event will contain everything that catering, hospitality and accommodation providers could need under one roof.

4 HM Sales Director, Mike Riches, said “This is the first of what we hope will be a yearly, trade event highlighting and bringing the best of what Norfolk has to offer. “

Mike went on to add “There are so many firms in Norfolk dedicated to supplying the full range of hospitality outlets and we think it deserves its own trade show. There is space for over two hundred trade stands at the show and visitors can gain free access to the show with tickets that will be made available through suppliers, local media and the show website.

Mark Carr, Marketing Director for 4 HM announced “We are also delighted that our media partners for the event will be the ARCHANT Group based in Norwich and we look forward to releasing more details via the press over the coming months.”

Mr Riches added “We have had a fantastic response from business organisations across the county who see it as a fantastic opportunity for everyone in the industry to network. The Norfolk economy benefits by around £2.5 billion a year through tourism and 15 % of all jobs locally depend on it so this should be seen as a celebration of a successful part of the local economy.”

With a mix of national, regional and local suppliers there and all sectors of the supply chain catered for the event should be a curtain raiser to the 2013 tourist season in East Anglia.

For companies wishing to exhibit or people wanting to make ticket requests can contact 4HM

Last week I was delighted to join a panel of construction-industry ‘Green Dragons’ at the Pennoyer Centre in Pulham St Mary, to hear pitches from seven East Anglian businesses targeting opportunities in sustainable construction. It was a really enjoyable day away from the office, partly because as architects it is always nice to go back and see your own buildings in use, but mainly because of the range and creativity of the ideas presented.

My fellow Dragons were all senior staff from large contracting, construction and property businesses, exactly the sort of contacts the competitors in the Dragons’ Den-style event need to make as they look to grow their businesses. The finalists had been selected from a wider field of entrants in two previous selection-rounds by organisers Build Norfolk and BEST East.

• Essex-based Avalon Abseiling were stressed the cost- and carbon-savings to be gained by using their teams of professionally trained rock climbers for façade-maintenance on medium and high-rise buildings, instead of conventional scaffolding.

• Master-Thatcher Stephen Letch of Starston extolled the visual and environmental benefits of a traditional Norfolk building material, but was keen to show it in contemporary applications including as a wall-cladding.

• Ron Beattie of Beattie-Passive explained to the Dragons that his innovative design-and-build service, based on the German ultra-low-energy ‘Passiv-Haus’ accreditation system, could be used on commercial and community buildings as well as dwellings.

• Kenneth Gibbs of the Anglia Skills Academy wanted the Dragons’ feedback on possible applications of plastic-encapsulated concrete blocks containing asbestos construction-waste, as an alternative to disposing of it in land-fill sites.

• Enviro-Den Ltd showed their ‘Eco-Foil’ green-roof system installed on number of garden buildings and extensions, and asked the Dragons to help them find larger-scale applications for their elegant curved profile.

• DGT Structures presented their pre-fabricated steel-framed floor-cassettes, which they hoped could find wide-spread application in the house-building industry as a fast and cost-effective alternative to traditional joist or plank floors

The Dragons had a difficult task in selecting an overall winner from such a strong field, but in the end agreed that The Limecrete Company stood out from the rest. The Attleborough-based company run by Myles and Lou Yallop has pioneered the use of spray-applied ‘limecrete’ walling in East-Anglia. Hemp-fibres grown in the region are bound together with lime mortar to form a sort of light-weight and breathable ‘organic concrete’, which can be used instead of traditional concrete blocks as the main walling material in buildings up to three storeys.

Since scooping the top slot Myles has already met with Morgan Sindall to discuss how his product might be used in larger scale projects currently on the drawing-board. Hear his interview with Radio Norfolk here.

The event was master-minded by Stuart Thompson of Morgan Sindall (pictured, front right) who congratulates Myles Yallop (front left) on his winning pitch. Back row left to right: Paul Cockaday (NPS), Matt Wood (Lucas Hickman Smith), Jonathan Churchman-Davies (May Gurney) and David Henry (Kier Eastern).

Hear Myles’s interview with Radio Norfolk here.

More information and including all seven finalists’ presentations is available on Build Norfolk’s website here.

In Spring 2013, Wymondham College will follow schools in Madrid, Stockholm and Istanbul by playing host to the biannual session of the Model European Parliament. From the 7th to the 14th of April, 180 of the brightest and most ambitious young people in Europe will visit the school, representing their home nations in debates on issues of mutual concern and interest in some considerable detail over the course of the week. This will be the first session of the MEP to be held in the UK for 20 years and, with the help of our partners, the College will work with students from schools and academies all over Norfolk to make the most of this excellent opportunity for political debate and cultural exchange with our guests, who will be coming from 30 countries all over the continent.

The delegates, aged 16 – 19 and all fluent and confident English speakers, will be housed in the College’s modern Sixth Form boarding facilities in Lincoln House and committee sessions will be held in the new International Centre. For the Opening Ceremony, delegates will travel to Westminster at the kind invitation of the Speaker of the House of Commons. Our guests will also be visiting a number of locations in the region as part of their programme, including Cambridge and Norwich itself. The final plenary sessions will be hosted by the University of East Anglia at their campus just outside the city. As well as representing the UK as delegates, young people from all over the region will also be involved in facilitating MEP Norwich 2013 by chairing committees, presiding over the General Assembly and providing coverage of the event using the school’s new media suite.

The session will also give students from a wide range of local schools, academies and Colleges the opportunity to become involved with the MEP for the first time and will be an excellent opportunity for our guests to explore what Norwich, the wider region and the UK have to offer.

We need YOUR support

We need support from local companies to ensure that this high profile event is as successful as it can possibly be.

We have already secured support from organisations such Norfolk County Council, UEA, City College, Naked Marketing, and Park Farm Hotel, and are looking to secure further support to cover the associated costs of hosting the MEP.

In return, we can offer

– Invitations to College events, such as our lecture series, prize-giving ceremonies and black-tie events.

– Opportunities to speak directly to students as part of our Careers information sessions.

– A ‘business links’ presence on both the official MEP website and the Wymondham College website.

– Acknowledgement in our annual College Magazine, which is distributed to students, staff, parents and alumni.

– An invitation to the official launch of the MEP in January, which will be attended by local news broadcasters and publishers and all other sponsors.

– Brand exposure to 180 of Europe’s brightest and politically aware young people with your logo on printed materials for the event.

– A fantastic opportunity for CSR.

Through hosting the MEP, we are seeking to nurture and build strong reciprocal relationships between Wymondham College and local businesses. The benefits of these relationships will have a long lasting positive impact on our students: your prospective future employees. The MEP has not been hosted in the UK for over twenty years, and with your help, we hope to create a lasting legacy.

Are you interested?

For more information, please contact Madelaine Scragg: [email protected]

British Franchise Association (BFA) Code of Ethics could apply whether or not the Franchisor is a bfa Member

The BFA’s Code of Ethics is a straight forward code which is designed to encourage ethical franchising amongst its members. The Code covers the minimum requirements expected from both franchisor and franchisee in respect of recruitment, advertising and disclosure and those terms which must and must not be included in the franchise agreement. The BFA has issued guidance on the Code’s application which is currently being revised and due to be published at the end of 2012.

It is generally assumed that the Code only applies to BFA members. However, the Code’ sapplication is wider than that. It is, therefore, worth reminding all franchisors in the UK (including non BFA members) that the Code could apply to them. The leading case on this topic dates back to 2004 regarding non BFA franchisor, Drivertime Recruitment (see Drivertime Recruitment Ltd and another company).

In the Drivertime case the court held that by neglecting to disclose failures of previous franchisees, failing to provide the level of support promised to potential franchisees, failing to provide local advertising and access to local blue chip leads and providing franchisees with unrealistic profit projections, the franchisor had specifically and purposefully evaded the Code.

The court noted that the Code was not binding law and that Drivertime was not a member of the BFA. However, the judge suggested the Code sets out a standard of “commercial morality which can be usefully applied in this unregulated industry”. Whilst it was significant in the Drivertime case that many potential franchisees specifically asked about previous failures of other franchisees and the franchisor failed to disclose accurate information, the judgment does reiterate the importance of complying with the Code: “It is obvious that any person asking about closures or failures wants to be given the full picture; honest answers to questions, and compliance with the BFA Code should have led Drivertime to reveal cases where the franchisee had left the network to set up in competition.”

So, this is a reminder to all franchisors to ensure that you read, understand and (most importantly) comply with the BFA Code of Ethics. A copy of the Code and guidance can be found on the BFA website: www.thebfa.org. Compliance should not be too onerous as ethical franchising will by its very nature operate in accordance with the principles set out in the Code.

Minimum Performance Standards must be reasonable

Franchisors typically like to set benchmarks and targets and provide template business plans for their franchisees in order to assist in the running of the franchise and to encourage performance. Targets should be set at an achievable level in order to stimulate rather than dishearten franchisees.

Franchisors also often stipulate minimum performance standards, the failure to achieve which may give rise to a right to terminate the franchise agreement. These minimum performance obligations need to be carefully considered. Under the BFA guidelines the levels set must be reasonable. Exactly what is deemed to be “reasonable” will vary depending on the type, size and maturity of the franchise network but the following should be considered:

• Against what is minimum performance measured? The BFA suggests that it should be no higher than 70% of the average of all franchisees which have been operating for at least a year.

• Is there an opportunity to remedy the failure? A remedial plan could be agreed, the territory reduced and/or exclusivity limited.

• How strict are the provisions? Is it simply failure to achieve minimum performance levels in any single quarter? Or, for example, is the franchisee allowed to fail in any one off quarter provided failure does not occur on two consecutive quarters up to a maximum of four in any 5 year terms.

The bottom line is that a franchisor should not simply use minimum performance standards as a tool to remove the low performers unless they are actually performing unsatisfactorily and only once they have been given the opportunity to improve.

For franchisees, it is incredibly important that at the outset a careful review is carried out of minimum performance obligations (especially if the franchise is not a member of the BFA) to ensure that the mechanism in place are reasonable and to comply with the BFA guidelines.

Deposits and Refunds Best Practice

Most franchisors ask prospective franchisees to pay an initial deposit. This is an entirely acceptable practice and is commercially sensible in order to weed out any time wasters and ditherers.

Nevertheless, any such deposits should be refunded in full if either party decides to withdraw. The only costs that the franchisor should be able to deduct from the deposit are those direct costs (for example, agents and/or legal fees but not including franchisor time) which have been incurred by the franchisor from the time the deposit was paid and which were clearly communicated to the franchisee in advance or agreed subsequently. The BFA has issued very clear guidelines on this point.

Franchisors should ensure that their standard form deposit / intent to proceed agreements are drafted appropriately.

Franchisees should ensure that they carefully read and understand the terms of any deposit / intent to proceed agreements before signing and paying a deposit, especially if the franchise is not a member of the BFA.

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• Competition law: EU Block Exemption • Data Protection Compliance • Late payment interest • Serving notices • Disclosure requirements • Side Letters – are they enforceable? • Restrictions – do you have the flexibility to protect your brand? • Trademark – who holds it? • Olympics and Force majeure clauses • Bribery Act 2010 • Social networking • Remedial Plans vs terminating the franchise agreement