Woolley & Co E-Zine November 2006
Tips and ideas for keeping your business on the right side of the law


Welcome to the November Woolley & Co ezine.  This month there’s a look at the serious issue of internal fraud and how it affects small businesses, advice for business owners facing divorce and a look ahead to the impact of the new Companies Act.

We welcome your feedback - if there is any particular legal issue you'd like to see covered send the details through to marketing@business-lawfirm.co.uk.

Andrew Woolley
Andrew Woolley, Senior Partner, Woolley & Co

FRAUD AND THE SMALL BUSINESS

Fraud costs the UK economy many times more than all other types of crime taken together and it affects small businesses every day of the working week. The incidence of fraud is hugely under-reported as the police have no interest in recording fraud as a crime unless they are also making an arrest. The fact is that there has been, and continues to be, exponential growth in the perpetration of fraud, brought about by the increase in cross border travel and ease of international communications through new technology. 

We have all seen the emails which are dressed up to look like banks and other financial institutions. Danger often comes closer to home for small businesses and may be less obvious.

An Inside Job
‘Internal’ fraud is instigated by an employee or sub-contract worker and may include where an employee assists an outsider.

Small businesses, particularly in the IT world, rely primarily on trust in their employees or outsourced service providers. Increasingly it is no longer necessary for employees or sub-contractors to be gathered together in an office. Most software or web developers can operate just as efficiently as a ‘network’ of people working from different locations.

If essential functions, such as financial record keeping, are conducted at a location remote from the core business, then the possibilities for fraud are almost limitless.

In recent experience we found that a trusted employee had formed a company with a very similar name to the name of the company for which he worked. Hence a bank account in a confusingly similar name could be opened. A proportion of payments properly due to the employing company were banked into the account of the other company. A downturn in sales was reported to cover this theft.

In another substantial internal fraud, a director had created a company of his own which he then commissioned to provide work for the company of which he was a director. As he held the cheque book, he wrote out hundreds of thousands of pounds worth of cheques to his own new company for unnecessary work that was never done.

Spotting or Preventing Fraud
The common thread in each case is that the guilty party controls the information flow back to the core of the business. There is no independent overseeing of the flow of critical information.

Those in charge of a small business are often entirely pre-occupied by the need to keep work coming in, to make the product or to service customer needs. In such circumstances it is very easy to miss the critical tell tale signs that the business is being defrauded as the more that is lost inevitably means that more hard work must be done to make up the shortfall. A self perpetuating spiral of decline ensues.

Those who conduct their own small businesses would be wise never to leave any single aspect of the conduct of the business in the hands of one person.

If you feel that your business is not as successful as it should be, then call Stuart McIntosh on 0121 308 2118 or visit www.business-lawfirm.co.uk. Stuart is a specialist commercial solicitor working with SMEs on a day to day basis.  He is also an ex-policeman, having spent a good deal of time in the fraud squad.  So he’s perfectly placed to advise on this subject.

CHANGES AHEAD IN 2007 FOR COMPANIES AND DIRECTORS

The new Companies’ Act 2006 which received Royal Assent on 8th November 2006 is set to consolidate the existing laws affecting companies – and to make some changes too.

It looks likely that most of the changes will come into force towards the end of 2007 with some elements coming into force early next year.

This is an important piece of legislation, as far as companies are concerned, and has broken the record as being the largest Act of Parliament ever passed with over 700 pages and nearly 1,300 clauses.

The changes to be bought about by the Act are set to tighten up the control of companies, in the light of recent scandals such as Enron, Worldcom and Parmalat, and to give more power to shareholders. How effective it will be in this respect will largely depend on how the courts interpret it once it comes into force.

The Act has made several changes that affect directors of companies and we shall be going into these in more detail in forthcoming Ezines. Most importantly, it has set down a list (unfortunately not comprehensive) of directors’ duties, which all those involved in the management of a company should be aware of, and shareholders can start proceedings against a director or shadow director if they are in breach of them.

Look out for more details on the changes to directors’ duties in the December 2006 Ezine or if you have an questions in the meantime call Gary Cousins on 0121 778 3212.

 

YOUR QUESTIONS ANSWERED

Q. I now head up the “family business”.  My relationship with my wife has broken down and I want to get divorced.  No one in the family has ever been through a divorce before so I’ve no idea what to do to protect the business and be fair to my wife.

A.   The first thing is to speak to your specialist (it’s really important to get a specialist) divorce lawyer and get your accountant to discuss things with them. There may well be perfectly legally acceptable alterations which can be made to your business accounts, to your advantage.

But quickly after that you should move swiftly to a separation agreement.  Very basically, such an agreement is a contract between you and your spouse which sets out what you’ve agreed and is, if you’ve had the right legal help, almost always regarded as a settlement that divorce Courts will not interfere with. They can be drawn up quite quickly and cost effectively and take less time than the ‘full blown divorce’ which can come later. A separation agreement can set out that there are no or limited claims against your ‘capital’ in the business and you can get on with running it.  The important thing is to take specialist advice from an experienced family lawyer at this early stage.

For more details about divorce and separation agreements, or to find a specialist family lawyer, visit the Woolley & Co family website or call 01789 267377.

UKita ANNUAL AWARDS AND CHRISTMAS DINNER

The UK IT Association will be holding its annual awards and Christmas dinner on 1 December 2006 at the Novotel, Broad Street in Birmingham.  For more details visit the UKita website.

To find out more about these and other legal issues visit the Woolley & Co website at www.business-lawfirm.co.uk/. The site also contains articles and back copies of our E-zine – which might be a useful place to start if you have a legal problem you need help with.

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