• Q & A with Brachers

Q: I have heard about changes to how I can collect debts for unpaid invoices but will this affect my tourism business?

A:  As of 1st October 2017 the new Pre-Action Protocol for debt claims comes in to force.  

The new Protocol will affect the tourism industry as well as all businesses who are seeking payment from an individual so, yes, if you are trading with individuals and not obtaining payment upfront, then you will need to comply with the Protocol.

The Protocol prescribes what must be included in the letter of demand and two pro-forma forms must now be attached to the letter, being a new response form and a financial statement.  One of the biggest changes is that the debtor has 30 days to respond to the letter and, if they request copy documentation or raise queries, the creditor has to wait a further 30 days after answering the query or providing the document before commencing proceedings.  If the debtor responds with further queries or an offer and agreement cannot be reached, then the creditor must give 14 days’ notice of their intention to commence legal proceedings.

Failure to comply with the Protocol could lead to sanctions from the court.

The Protocol will change the way in which businesses deal with their credit control procedures and a careful review of your current procedures is required now to minimise the effect of the new Protocol.

Paul Abdey


Q: My business employs a number of permanent employees as well as seasonal workers from the European Union. I am concerned about the impact Brexit will have on my ability to retain and attract these workers. What steps can I be taking now to avoid a future issue?

 A:  The first step is to make sure that you have a good understanding of where potential areas of risk lie for your business. The best way of doing this is to carry out a full audit of both your permanent staff and of the processes you follow and the agencies you use for the recruitment and provision of temporary workers. If many of your seasonal workers are EU nationals it is worth speaking to the agency about whether they still have a good bank of workers available to them currently and what their longer-term strategy is should it become more difficult for seasonal workers to come to work temporarily in the UK. 

 Turning to your permanent employees, ensuring that you have engaged, motivated employees who recognise that they have an employer who cares about their wellbeing is often crucial to their retention. This can be achieved in a number of ways, such as by ensuring that your work place is genuinely one that is free from discrimination or harassment in any form, providing foreign nationals with information and support as the steps individuals and families will need to take to obtain “settled status” become clearer as well as more holistic strategies for promoting engagement and wellbeing throughout the workforce. 

It is also worthwhile spending time thinking about alternative types of workers you could look to introduce to your business in future. For example, if your business has not traditionally engaged apprentices (or has only done so in small numbers), the current national focus on apprenticeships and the recent introduction of the apprenticeship levy means that there is now plenty of information readily available on how apprenticeships can help your business and plenty of potential opportunities for those looking to hire apprentices to explore.

Whilst there is still a significant level of uncertainty as to what the full impact of Brexit will be, using the time now to plan ahead and identify the risks will place your business in a much stronger position in future. 

Antonio Fletcher 
Senior Associate


Q: As a tourism business we regularly send our customers direct marketing material via post and email with new and exciting offers. We have heard that data protection law is changing – is there anything we need to be aware of?

A: The Data Protection Act 1998 (DPA) currently regulates the control and processing of personal data in the UK but from May 2018 the General Data Protection Regulation (GDPR) will come into force, imposing a number of onerous obligations on organisations. 

In order to process personal data (including postal and email addresses) businesses need the data subject’s consent and under the GDPR the standard of consent will become higher. In particular, consent will have to be freely given, specific, informed and unambiguous and it will also require some form of clear affirmative action from the data subject - pre-ticked boxes, silence or inactivity will not suffice.  You will therefore need to consider how you currently obtain consent from your customers to receiving marketing material and whether in light of the GDPR your procedures need to be updated. 

In relation to existing customers that you already send marketing material to, whether you will be able to legally continue to send such material ultimately depends on what sort of consent to processing you originally obtained from them under the DPA. In principle, you will not be required to obtain new consent from individuals if the standard of the original consent meets the higher standard required under the GDPR. Email marketing already requires a higher form of consent under the Privacy and Electronic Communications Regulations 2003 so if this has been your preferred method of communication in the past, there may be a greater chance that you are already GDPR compliant.

It is important to review your current policies to avoid non-compliance with the GDPR.  Under the GDPR fines for data protection breaches will rise from the current maximum of £500,000 to €20million or 4% of global annual turnover.

Sarah Hewitt
Corporate & Commercial Solicitor
01622 776459

Q: How easy is it to get planning permission for Tourism and Leisure Development?

A: Planning Applications for tourism and leisure development (for example a new hotel or guesthouse or leisure facilities such as cinemas, museums and galleries) are considered by the Local Planning Authority (LPA) for the area in which the development is to take place – i.e. the local District or Borough Council. When considering such applications the LPA must decide whether or not to grant planning permission based upon local and national planning policies and other material considerations.

National policy is set out in the National Planning Policy Framework (NPPF). This is the government’s high level policy for the whole of England. It contains a presumption in favour of sustainable development. Being a “high level” document is does not say much about tourism and leisure development specifically. Whilst national policy generally favours placing such uses in town centres it also encourages LPA’s to have policies which support a strong rural economy.

Local policies (produced by LPA’s) should be in conformity with national policy and will go into greater detail about what types of development are appropriate in which locations. Local policies may or may not be supportive of development depending upon local considerations, such as the impact on the area, the need for such facilities and the employment benefits. Other issues come into play – such as whether the site is in an area of outstanding natural beauty (AONB) or the Green Belt. 

Whilst pre-application advice can be obtained from the LPA though this is not binding. If a development is ok in principle then a scheme will need to be draw up which addresses any policy concerns.

Lee May
Partner, Planning & Environment
01622 680431

 Q: Hiring out my venue is becoming an increasingly important source of business; what are the key legal considerations?

A: With its beautiful landscapes and excellent transport links, Kent is often a prime choice for venue hire for weddings, conferences, corporate days out and much more.  Whilst venue hire is a lucrative and additional source of income, it is important to ensure that certain elements are in place to minimise risk and maximise return. 

As the venue owner you will, so far as possible, want to exclude liability arising from the event by ensuring any hire contract includes an appropriate disclaimer together with a clause by which the hirer agrees to indemnify you for all damage, injury or loss occurring at or arising out of their event (which is not due to your own negligence).  

Insurance is absolutely crucial. As well as your own insurance for the premises, you should contractually require third party hirers to take out suitable insurance, to support the indemnity referred to above. 

The contract should be very specific and clear about cancellation and the costs involved. It is usually best to have a staggered cancellation policy, depending on the size of the event and amount of notice given. You should ensure that deposits are clearly stated to be non-refundable.

Other legal considerations include health and safety obligations, permits, licences and advertising.

Sarah Hewitt
Corporate & Commercial Solicitor
01622 776459

 Q: My business will soon be taking on additional staff in the run up to Christmas – is there anything specific I need to consider before employing temporary workers?  

A: With Christmas fast approaching, many businesses may be considering taking on temporary staff to provide additional resource during this busy time. However, it is important to take a step back and consider the employment relationship you are creating with your staff.

We have all seen the headline news story of Uber taxi drivers being found to be ‘workers’ which means they are entitled to certain rights such as a right to receive national minimum wage, the right to holiday pay and the right to bring a discrimination claim against their employer. More and more we are hearing the government talk about the so called ‘gig economy’ and an inquiry has been launched into this rapidly developing area of temporary positions and short term workers. 

It is yet to be seen whether this ‘hot topic’ is any more than a craze following the recent press coverage or whether it will mean real changes for businesses on how they manage their workforce arrangements. What is certain is that businesses should regularly review the contracts, agreements and policies they have with their staff to ensure they are clear on the relationship that is being created and what that relationship means.

Catherine Daw
Partner and Head of Employment
01622 655291