Our legal experts are on hand to provide you with advice on setting up and running your own business. Adam Grimwood, a solicitor at FSB Legal Hub, answers some of the latest queries.
Q. I have received a letter from the Information Commissioner’s Office (ICO). It suggests I am breaking the law because I am not registered with them. Is this legitimate?
A. You are right to be cautious, as there are so many scams. This is legitimate; it seems the Information Commissioner (the UK’s independent body that upholds information rights) is writing to everyone who is not on its records. All businesses that store data on some form of technology (often a computer) are likely to need to register. If you are not registered when you should be, you are technically committing an offence.
There are exceptions, for example if the only data you hold relates to staff, or is necessary for your accounting. On the other hand, if, for example you have workplace CCTV, you need to register.
Businesses should do the Registration Self-Assessment on ico.org.uk to find out one way or another.
If you do need to register, there is a relatively small annual fee (£40-£60 for most organisations).
If you do not need to register, you still need to comply with obligations under data protection legislation.
Q. I am struggling to pay the rent on my commercial premises. What can I do? How vulnerable am I if I am not able to pay?
A. This scenario is all too common at the moment. There is nothing in the law that says that a tenant no longer has to pay rent in a lockdown – unless your lease provides for rent suspension in these circumstances, which is unlikely.
The Coronavirus Act means a landlord cannot evict you from your commercial premises for non-payment, and it is more difficult to send bailiffs in to seize goods to the value of arrears, as the outstanding amount needs to be substantial. These protections last until at least 30 June 2021.
While that keeps the wolf from the door in the short term, it doesn’t solve the problem, as unpaid rent continues to accrue and your landlord can still sue you for it. It is hoped that landlords and tenants will be able to work through this as things hopefully return to normal.
The Government’s position is to support commercial landlords and tenants to agree their own arrangements on debts by 30 June. The code of conduct it published last year sets out best practice for these negotiations. If discussions do not happen and there remains a risk to jobs, the Government is prepared to take further steps.
Q. My company booked to attend a trade show just before the pandemic struck. The original and subsequent dates were cancelled, but the organiser is insisting it can rearrange it again and we are not entitled to our money back. Is this correct?
A. This is a business-to-business (B2B) contract, so there is not as much of a concept of ‘fairness’ as there might be if this was a personal holiday booking. Under the general law, you might look to argue that the contract was ‘frustrated’ – that is to say, it was no longer capable of being performed or could only be performed in a substantially different way (e.g. a different date or venue).
However, in B2B contracts like this, there is likely to be a ‘force majeure’ (FM) clause. This effectively takes precedence, because the parties have envisaged what external events might scupper the performance of the contract, and have provided for what the contractual position is if such an event occurs.
If the clause is worded so as to cover pandemics/lockdowns etc, and says that in such a case the organiser is allowed to change the date or location, then that is the position, and they are entitled to say that you cannot have a refund. One would hope there may be scope for some sort of negotiation or compromise. If not, while it is possible to try to challenge such clauses, it is far from easy.