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Specialist dental lawyer’s guide to growing a dental business
Monday 24th July 2017

As a niche lawyer working within the dental sector, I am often involved with businesses experiencing periods of rapid growth. Whether the quick growth strategy is the way forward for you is a personal decision, depending on your individual circumstances, but many practice owners would benefit from implementing a clear strategy for developing and growing their business.

The most obvious form of expansion for many practices is to consider an alternative income stream, most commonly through the development of a private patient base. The introduction of a payment scheme would often come with guidance from the scheme providers in terms of attracting a patient base. Offering a capital scheme payment plan is perhaps the most common and obvious way to add to the income of a practice. However, it is only going to work if you are attracting sufficient patients to cover any existing NHS obligations.

If you have space within your existing premises, this may also prove to be a useful way to expand your business. Many practices look to make arrangements with complimentary businesses – with the double benefit of receiving a rent for the room and attracting more people to the surgery. Alternative businesses such as chiropractors and podiatrists, were historically more common, but now aesthetics are proving popular. Whether the aesthetic services business is run by you or another business owner leasing space from you, their association with your surgery can bring a boost in terms of patients looking for a wider array of private treatments and it can also add to the ‘spa experience’ feel of a surgery. However, there are legal considerations to bear in mind; do you wish the tenant to have a right to remain and renew their lease at the end of the term, is planning permission necessary and will any letting arrangement breach the terms of your own lease (if you let the property yourself)? It is important to take independent legal advice on your practice property before going ahead with a letting arrangement, and it is strongly recommended that the terms of any letting be put in writing.

Another route forward in terms of growth would be to consider a new or expanded NHS contract. There are two ways this may be possible- the NHS in your area may have UDAs available for tender applications. Tendering is often highly competitive, but specialist companies may be able to assist with the process, improving your chances of success. An alternative way forward may be for you to acquire an additional practice with an existing NHS contract.

If you do look to acquire a second practice you then have several options. You may choose to run two practices, your own surgery and the newly acquired surgery. Alternatively you might look to migrate the patients at the newly acquired practice over to your existing surgery and close the second location. Choosing to close the second site would involve obtaining the consent of the NHS local area team, who would need to give consent to relocate an NHS contract. It is also worth taking advice as to whether you can either re-sell the second premises or whether any lease for that building can be terminated.

If you choose to run a second site, there may be some factors to bear in mind. Will you need a full staff at both locations or will there be some benefits in terms of economies of scale? Will you need a practice manager for each site? How will you split your own time between the surgeries? If you are likely to be present at one site more frequently than the other, how will you ensure that standards are maintained at both locations?

A common way forward is to delegate responsibility for day to day management of the second site to an associate. However, if you choose this route, it involves a significant degree of trust on both parts. You will also need to ensure that the associate is sufficiently well rewarded not to want to leave your practice and do the same thing for their own benefit. It is important to include effective provisions within their associate agreement to prevent them competing with the practice should they choose to move on. It is vital that such provisions are reasonable both in terms of timeframe and distance from your practice to be enforceable. If you aren’t sure then take advice on what is likely to be reasonable.

A second site would also need to be registered with the CQC in England. The application process for a second site is likely to be shorter, but you will need to consider whether you are to be the person with registration or whether this can be delegated to a registered manager who is on site. The way forward will depend on whether you feel comfortable taking responsibility for the practices at the second site, which will depend on how much time you are planning to be present at this site.

If your business does expand, you may then wish to consider the legal structure of your business. There are several options in terms of business ownership- the individual sole trader, a partnership, an expense sharing arrangement, an LLP (limited liability partnership) or a limited company. How you choose to structure your business is likely to depend largely on the tax position, so it is important to speak with your accountant. Any bank  which finances your business (or acquisition), will also need to be involved with the decision as to how to structure your practice, as they may refuse to lend on certain structures, or wish you to put in place certain arrangements or guarantees. Decisions as to structure may depend on the risks that are associated with your business, as structures such as limited companies and LLPs will protect any other personal assets from the liabilities of the business. If you have an NHS practice, you will also need to consider whether the contract will be transferred into a company name or whether arrangements for subcontracting may be possible.

Whether business expansion is something that is at the forefront of your considerations in your day to day practice management, or just something that you vaguely wish to do in the future, enlisting the help of specialist dental lawyers and accountants is a good first step. The dental team at Brabners regularly advises clients who are in the process of expanding their businesses and can offer advice and assistance having helped others successfully manage the process.


Author:

When can parent companies be liable for their subsidiaries?
Thursday 20th July 2017

A recent case has provided further clarification of the scope of the potential liability of parent companies for the acts or admissions of their subsidiaries.

The case confirmed that the fact that two companies form part of the same group does not in itself impose responsibility on the parent for the acts of its subsidiary. The level of specialist knowledge and reliance placed on a parent is particularly important to consider when establishing if there exists a duty of care.

In the case of His Royal Highness Emere Godwin Bebe Okpabi and Others v Royal Dutch Shell PLC and Shell Petroleum Development Company of Nigeria Ltd 2017 EWCH 89 (TCC)  a claim was brought roughly 42,000 Nigerian Citizens (“the Claimants) against Royal Dutch Shell PLC (“the Parent”) and Shell Petroleum Development Company of Nigeria (“the Subsidiary”). The Claimants sought to bring proceedings against both the Parent and the Subsidiary. The Parent argued that they should not be a party to the proceedings and that the only cause of action available was against the Subsidiary. The Court decided to look at this as a preliminary issue before allowing the claim to proceed.

In the Shell case the judge noted that the Parent:

• did not hold shares in the Subsidiary;
• did not conduct any oil operations;
• was not allowed to conduct oil operations in Nigeria; and
• unlike the Subsidiary was not a party to the Nigerian Joint Venture.

In limited circumstances a parent may be liable for its subsidiary in health and safety law. If a parent has ‘superior knowledge or expertise’ than that of its subsidiary in relation to the harm a judge may impose liability. In the Shell it was the Subsidiary, rather than the Parent, who had specialist knowledge and expertise in the oil industry in Nigeria. There was and no evidence to suggest it was relying upon the knowledge and expertise of Parent.  The judge held that the Parent did not owe a duty of care to the Claimants.

The best practice advice to reduce the risk of liability of a parent company for that of its subsidiaries would be to ensure that:

• the parent and subsidiary operate in different markets or the parents only business is holding shares in its subsidiary;
• the control exercised by the parent in relation to the subsidiary is minimal;
• those accountable for health and safety matters in subsidiaries are furnished with as much knowledge as those at parent company level.

For more information on parent and subsidiary companies liabilities or corporate matters generally please contact Rupert Gill on 0151 600 3106 or via email


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Theresa May and Brexit
Wednesday 14th June 2017

Theresa May called a snap election in order to strengthen her mandate to negotiate the Brexit deal. She wholly failed in this stated aim.

This was an election in which politics were irrelevant to the Conservatives’ campaign. For the other parties, especially their main rivals, it was all about politics. So what did she ask us to show our support for? Her mantra was strong and stable leadership and the most capable to deliver in the Brexit negotiations. Within the message, the Conservatives campaigned on was their view that the opposition did not have stable leadership and was incapable of negotiating a sensible deal. Initially, all opinion polls were of the view that she would substantially increase her margin. So why did she fail to garner the support at the ballot box 6 weeks later.

A good negotiator is one who does not get (or look) flustered; who has a strong grasp of their own strengths and weaknesses; understands their own arguments; is lucid and able to carry and illustrate an idea; is able to listen and understand the arguments posed against them; can think on their feet; knows when to compromise and when to stick; is able to manage their own personality; can show empathy, can cajole, can resist and can reject in the right circumstances. Ideally, a negotiator will have charisma and charm to help carry arguments and persuade.

A good leader will ideally carry the majority of the above qualities, but must also be principled and able to stand up for their principles. Can a real leader be devoid of charisma and of personality in the World we now live in?

Throughout the 6 weeks of the election campaign, Theresa May managed to convince the electorate that she had none of the above qualities. In addition, she was incapable of answering what it was she was seeking to negotiate, other than to say that she was looking to negotiate the “best deal available”, an incomprehensible threshold. Interestingly, at the same time, the leader of the opposition appears to have travelled the opposite path and as well to have focussed on real political issues. In my view the electorate ceased to see this as an election to vote the best leader and negotiator of Brexit and fell back instead on their own beliefs and politics and the parties that best portrayed those.

What does this mean for the Brexit negotiations, due to start imminently? Thankfully, 95% plus of the negotiations will not have any personal negotiating involvement of the Prime Minister. They will be negotiated by a team of civil servants. The Prime Minister sets the scene. Having a publicly diminished status, the Prime Minister cannot be bullish in her attitude if she wishes to survive. She is more likely now to set a scene that is conciliatory and collaborative (if she is capable of that), at least across the breadth of her own party. She will also need to seek an approach that keeps the DUP on side. It will be interesting to see how this comes over in the public sphere by comparison with her last affray with Mr Juncker. It will also be interesting to see how her changed status will alter the tactics and public messages proposed by Mr Juncker and the European negotiating team.

We will be keeping an eye on the path of the negotiations and the tactics of the various negotiating parties over the next several months. 


Author:

The negotiation of Brexit from the perspective of a transactional lawyer
Monday 22nd May 2017

Negotiating a transaction

When approaching a transaction experience has shown us some of the key considerations are as follows:

  1. Information - each party should learn as much as possible about the other so that they are better able to understand areas of leverage, easy gives and no go areas.
     
  2. Leverage - the parties should evaluate the intrinsic factors of need, desire, competition and time pressures. For example, if a company’s business critical IT system fails they will need a replacement system straight away. As they enter into a deal for the supply of such a system their need will be high, they will be under considerable time pressure. Unless the system is easy and quick to procure from many competing suppliers, their leverage is less than someone who can wait several months to purchase a new system. 
     
  3. Analysis - the parties should carefully consider what all of the issues are, aiming to have no unknowns. They should consider also outside impacts and understand what they can control and what they cannot control. They should aim to isolate each issue and specifically reflect upon the relative importance of each individually.
     
  4. Rapport - it is key to establish a mutually beneficial working relationship with the other party. This can help to determine what type of negotiator each party is dealing with and whether or not they are likely to be cooperative.
     
  5. Expectations- it is important to set realistic expectations and then work to achieve them.
     
  6. Plan - the parties should have a flexible plan and strategy for the negotiation, flexible because unknowns and uncontrollables arise. A plan enables a party to drive negotiations.
     
  7. Available outcomes and alternative options- if the negotiation stalls and the parties reach deadlock it is important to effectively evaluate what the best alternative would be. You should always seek to understand what your own and the other side’s worst case scenario is. In the disposal of a company, the best alternative could be that another buyer immediately agrees to purchase the business at a better price. The worst alternative could be that a new buyer isn’t found and the company continues to operate. By contrast, the worst case scenario might be that the management team walk, that the buyer takes the customers or staff or that the business runs out of funds. As well as weighing up your own best and worst alternatives it is vital to be aware of the other side’s and also to have consideration as to whether or not they will be aware of your own. This enables pre-emption of the tactics the other side will employ in negotiation and allows an appropriate fall back, bottom line position to be set.     

Negotiating Brexit

The opposing sides in the Brexit negotiations have been doing their homework, gathering and analysing the information. The UK and EU are now laying out their opening positions. This is not going to be a quick negotiation, Article 50 specifies that the parties have two years to negotiate the withdrawal and the UK’s future relationship with the EU. By comparison, trade deals usually take decades to negotiate.

At this starting point in the negotiations, there are no immediate time pressures. It is acknowledged by both sides that there is much to achieve in the timescales, but given the short termism of politics, the time pressures are not yet taking any priority or providing any leverage in the negotiations. As a result, neither side has been prepared to take a particularly reasonable initial position, no easy wins will be given at this stage. In other words both sides have adopted aggressive unilateral positions in an effort to retain all of their respective bargaining chips.

Theresa May started by taking any monies the UK may or may not owe in the “divorce” off the table unless a sensible trade agreement can be reached, so seeking to prioritise the trade agreement over Brexit. This is at odds with the EU position, who wish to secure the terms of the “divorce”, especially the financial terms, before they will allow any concessions and favours in any trade agreement. The relatively easy ‘gives’ for the both sides, for example, the rights of EU citizens already resident in the UK and vice versa, are currently not on the negotiating table. From the UK’s perspective, raising and dealing with these at this stage would be prioritising the divorce, rather than prioritising a trade deal.

The way in which each party has laid out their positions and reacted says quite a bit about the negotiation behaviour that each party is looking to use. Theresa May appears to have taken a quiet but firm approach, with some no go areas raised early. This has been proposed and discussed in private over dinner, backed up with conversations entered into by her negotiating team with their opposition. She has attempted to establish a personal rapport with Jean-Claude Juncker, President of the European Commission, to enable principle issues to be aired, whilst keeping the detail of the negotiations out of the public eye.

Juncker has sought to establish himself as the EU’s “negotiator” and middle man. He has listened to what May is saying, but has proposed nothing and given nothing away. At this stage it suits him to negotiate as the mouthpiece of the members and he has stressed the need for the Commission to keep the EU Parliament and member states informed throughout the process. His position is at odds with that of Theresa May. Juncker sought to illustrate the power of this position by publicly unleashing the voices of his 27 members (apparently as one) when he reportedly stated he left ‘Downing Street 10 times more sceptical’ than he was before he arrived. A series of leaks from his visit have cast doubt on any genuine rapport between him and May.

Juncker has, in addition, claimed that the UK has not done its homework and is ill prepared. He claims that Theresa May has unrealistic expectations and believes that she cannot allow the UK to land in what he considers to be its worst case scenario, one where no deal is made. Theresa May has refuted each point, has claimed her position is perfectly reasonable as are the UK’s expectations, is apparently comfortable that all information gathering has been done and the team are fully conversant with all issues to be negotiated and resolved. On 2 February 2017 the UK produced a white paper entitled The United Kingdom’s exit from, and new partnership with, the European Union. Tucked away at the bottom was the following quote:

‘The Government is clear that no deal for the UK is better than a bad deal for the UK’

These two opposing tactics are unlikely to yield much in the way of progress. They oppose each other in such a way that there cannot be a meeting of minds, a real negotiation. If Juncker continues to listen in private and retort in public, less will be said in private and the party’s positions will become intractable. Within the context of a corporate transaction, at this stage, we would look to identify between which other individuals on the opposing teams a rapport could be built, whilst at the same time seeking to mend the damage already done. Obviously, various other tactics and behaviours will already be being used behind closed doors between the negotiating teams, as well as between the various states.

Any agreement between the EU and UK requires the ascent of the ‘qualified majority’, in other words 72% of the member states. One of the key considerations that the UK will have analysed (and will continually re-evaluate) is whether remaining 27 states are speaking as one, through Junker. Each member state may have different and potentially competing best and worst alternatives in the negotiation. This ultimately adds to the complexity of the negotiation and makes Juncker’s actions high risk. He has a powerful position whilst the member states appear to be as one, whether or not he has a rapport with his opposition; but if that ceases to be the case, then he will quickly cease to have any purpose in the negotiations (no longer the mouthpiece and with a negative rapport with the other side) and he would then be seen as obstructive and will be side-lined.

Any ‘deal’ will require, from both sides, creativity and empathy for the other’s position. Many concessions will be required to achieve this. The posturing we have just seen is just the initial positioning of the parties. The positions are not yet close enough for real negotiations to start. We would expect revised opening positions from at least one of the parties in order to provide a platform from which they can reasonably start to make concessions.

Whilst the opening positions of both the UK and EU remain far apart it remains to be seen how the negotiation will unfold. Adopting the transactional approach, seeking a common ground for a meeting of minds is most likely to provide a positive solution for both sides.


Author:

Record investment in northern tech businesses in 2016
Friday 24th March 2017

2016 proved to be a record year for investment in northern tech businesses according to data published by Tech North this week in their Investment Index Report.

The report indicated that there has been 1,551% growth on investment finance in northern tech companies with steady year on year growth in terms of both investment and deals over the last ten years.  

The figures for 2016 equate to a total of £326.9m of investments from business angels or venture capitalists with the majority of deals being made to finance growth or expansion.  Fintech has been highlighted as one of the top areas of investment while VR, wearable tech and AI have all been recognised as new and upcoming areas of investment.

With the Manchester digital space well established and the Liverpool digital space following closely behind, it comes as no surprise that the North West led overall for the total number of deals across the North.

It’s clear that the North is becoming more attractive to investors for a number of reasons.  Northern tech founders are not needing to look to relocate South in order to access investment or opportunities and investors are attracted to the North as they can see the ambition and quality of work coming from these companies. In addition, the North is still proving to be a much more cost effect location to set up a business, especially a digital business which does not always rely on a physical geographic location as a base. 

The report also indicates that investment opportunities are not just limited to investors in the UK with Northern Tech businesses receiving investment interest from places as far as Japan, the US and China.

With funding expected to begin arriving from the new £400m Northern Powerhouse Investment Fund, it is clear that there are a growing number of finance opportunities available to Northern businesses establishing themselves in the technology, digital and creative sector.

To find out more about accessing the right funding for your business, please contact Jayne Croft and Mark Rathbone.

 

 


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Dental practice owners should take time to step out of their clinical roles to run their businesses
Tuesday 21st March 2017

All too often, dental practice owners take a view that, provided they have money in the bank at the end of the month, they don’t need to worry about their business. With increased clinical pressures such a view is understandable. Nobody describes being a dentist as easy. However, taking a step back can reap significant reward, in terms of profitability, better work/life balance, patient satisfaction (and retention) and even clinical results.

The starting point for a practice owner (or dentist looking to acquire their first business) is to consider what they really want from it all. Are they simply looking for practice ownership as the next step on the career ladder, or is there something deeper? Someone going through the motions in a career may never have really considered what benefits they want to achieve from all of the hard work they are putting in. For some, the driver is purely financial; for others it is about achieving flexibility in their working life to fit in with other personal commitments; whilst the driver for some dentists is more about the sense of personal achievement and pride in their business. Sitting down to consider and record your personal goals is the first step towards achieving them.

When you know what you want from the practice, set yourself goals and a vision for the business. How do you want the business to look in say 2 years’ time? Even if the goal is not fully achieved in that timescale, this doesn’t mean you have failed and should give up. It will probably mean at that stage that you are about 20 steps closer to your goal but you still have more work to do.

Your goals can also change over time. It is important to continually re-evaluate. If a new NHS contract is introduced as promised before 2018 (politicians can also set themselves goals that might not be achieved!), then you might need to reconsider where your business is heading. Adapting to change is a vital part of becoming a successful businessperson. Keeping on top of changes in the industry, demands of patients and the benefits of technology can keep you in the game. Maintaining the ability to adapt to change is tiring. Many times, I have been instructed by someone looking to sell their practice because they are having to deal with one change too many (the introduction of compulsory CQC registration for dentists being the most obvious example).

It is also vital to monitor your own progress in terms of your goals. If part of your plan is to gradually switch to plan based dentistry, then you should be monitoring the uptake of plans and putting in place strategies for improving this. If one of your associates can convert 15% of their patients onto a scheme, and another associate only 2%, then you will need to consider why. However, the information as to these conversion rates reaching you is the cornerstone of being able to do something about it.

I am constantly surprised by the number of practices that have very little grasp of their daily, monthly or annual finances. It is rarely sufficient to consider the accounts of your practice on an annual basis (which is also likely to refer to the year ending around 9 months before you receive the paperwork). However, for many practices this, and the balance in the bank account, is the only information that will ever be considered.

It is vital to have an understanding of a balance sheet and a profit and loss statement. As a business owner, if you don’t feel that you have sufficient skills or ability to read these documents, then get yourself some training or ask for the assistance of your accountants. You also need to ensure that management accounts are produced on a regular, or even a real time, basis giving you the information you need to make properly informed decisions as to the future of your business.

Dentists can often be so concerned by the clinical aspects of their role that they neglect IT or marketing planning. Commonly, a practice will make an investment in dental software but fail to implement sufficient training and monitoring, leading to underuse of the capabilities and an unexpectedly poor return on their investment. If a practice owner feels that they don’t have the skills to deliver results in these areas, then it is always open to them to recruit an expert who can.

A practice owner should also not fail to underestimate the contribution that a strong team will have to the success of their business. Unless they are operating as a sole practitioner, there will be many patients with whom they may never cross paths. It is vital that all members of staff are on board with the plans that you have in place for them to be achieved.
Responsibility for staff goes far beyond just recruiting the right people in the first place (although that is a great place to start); you need to ensure that those staff remain happy and engaged in their roles. Development of either your own, or a practice manager’s, skills in terms of HR management can be advantageous. Happy, engaged and motivated staff = satisfied patients = a step towards your long term business goals.

It can be extremely tempting to focus your time and energy into patient treatment and clinical work. However, improving the way a business is run may actually mean an overall improvement in the dental health of your patient list. Taking the time to step back, plan, adapt to change and seek advice and assistance where you need it, can and will reap the rewards.
 


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The 5 most common causes for delay when selling a dental practice (and what you and your dental solicitor can do about this)
Tuesday 7th March 2017

In recent years, the length of time between the buyer making an offer for a dental practice, and them actually taking over has increased. There has been much talk amongst professionals assisting in these transactions as to how these timescales can be reduced and Brabners has produced and implemented strategies to ensure that we can meet the timescales required by our clients. However, there are often forces which act beyond the control of either the lawyers or the parties to the transaction.

Delays in transactions are rarely desirable by anybody. Solicitors and brokers often aren’t paid until completion takes place. From a buyer’s perspective, it is difficult to maintain excitement about a new business, when it can take up to a year after agreeing to buy before they take over. Sellers can also lose interest in the practice, standards can slip and UDA targets can fall behind. This can have a knock on effect to the value of the business.

If a transaction is taking longer than anticipated, consider whether the delay has been caused by one, or more, of the following issues.

Landlords

If the property is leased and the landlord is not a party to the sale, then the transaction will proceed either as:

a) A transfer of the existing lease (with the landlord’s consent being sought)
b) The existing lease being terminated, and a new lease being granted by the landlord
c) The landlord selling their interest in the freehold of the building to the buyer

In each of these scenarios, the landlord will be involved in the transaction. The property elements of the deal need to be tied into the business transaction. A landlord may be slow to respond to requests for documentation or just not move at the same pace.

It can be helpful to set out the proposed timescales with the landlord when they are first approached. If the seller or buyer are to be responsible for the landlord’s legal costs (which is often the case) then the appropriate funds should be lodged with your solicitor quickly.

Where an existing lease is being transferred, and the landlord’s consent for this is required, the law suggests that a reasonable timescale for giving this consent should be measured in days or weeks, rather than months. It may be possible to pursue a dawdling landlord in court to speed things up. However, this is an expensive option, and an appeal to the better, more reasonable nature of your landlord should always be favoured.

Funding

Although funding in principle is often in place when the initial offer is made, ensuring that the requirements of the bank to draw down funds can take more time.

Delays in this area can vary depending on which lender is involved.

It is a good idea to put your bank business manager and finance broker (if you have one) in touch with your solicitor at an early stage in the transaction. A business manager and broker will have a greater ability to liaise with security departments at a bank to ensure that documents are reviewed quickly.

Funding is also likely to have a number of documents which need to be signed by you which may come directly from the bank or via your solicitor. You should deal with all documents promptly, even if nobody uses the word ‘urgent’.

Funding may be dependent on a valuation report, although from experience this is rarely the cause of significant delay to a transaction.

From a seller’s perspective, delays can be caused by banks producing figures to discharge any existing borrowing secured on the practice. This can happen regardless of whether you still have funds outstanding on your loan, or if the loan has already been repaid in full (often some years previously).

If any borrowing is secured on your practice, pass your solicitor details of the accounts, and any contact details you have with the bank to your solicitor at an early stage. Your solicitor can check whether there is any formal security at the Land Registry or Companies’ House at the start of the transaction.

CQC

CQC registration applications are likely to take in the region of 8 weeks. It is also important that there is a DBS check available for both seller and buyer which is no older than six months old at the time of the application.

The time the DBS check takes can vary.

It is important that the CQC application is submitted neither too early nor too late. Although the temptation can be to get the application submitted early, a CQC assessor may not keep a pending registration in place. The CQC may require a second application if completion does not take place when originally anticipated. 

The solicitors acting for both buyer and seller can help set a timeframe for submitting a CQC application when planning the transaction. 

Associate notice periods

If a buyer is working elsewhere as an associate, many dentists are bound by a notice period of at least three months.

The buyer will be advised against submitting notice on their existing job, until such time as the transaction is legally binding (i.e. on exchange of contracts).

This can mean a potential three month delay between exchange of contracts and completion.

There are several ways that this can be dealt with.

a) The associate can informally agree with their current principal that a shorter notice period will be accepted. Often these conversations can be had with an existing practice some time early in the buying stage.
b) The associate can work their notice period at their existing practice but continue with the purchase of the new practice in a shorter timeframe, and either work at both sites or just at the old practice with associates carrying out much of the work at the new business. This often isn’t ideal as a new buyer will want to be in the practice understanding how things work and implementing whatever changes they have planned
c) The buyer can take a risk and submit their notice in their current role earlier. However, if the purchase doesn’t proceed, they could be left without a job.

Outstanding responses to enquiries/communication

This is unfortunately the most common reason for delay. One party may not be aware that others are awaiting something from them, or might be busy with clinical duties and simply not have the time to go looking for, what they believe to be, a relatively pointless document.

It is important to have clear and open channels of communication, both with your lawyer and the other party in the transaction.

Brabners also has in place a transaction guide, which is provided to all new dental clients, allowing them to mark off the different stages of the transaction when they are reached. This makes it easier to anticipate the next thing that might be asked for, and to see what is going to be expected from each party and when.

If you find telephone calls difficult to take when in surgery it is usually sensible to request that your lawyer contact you either by e-mail or text message. Either are fine with us, if they work better for you as a reminder of what is needed, then just ask. Alternatively, if you prefer to have a conversation with your lawyer, again, that works for us too!

It is also sensible, from a seller’s perspective, to have an idea of what sort of documentation is going to be requested during the course of the transaction.


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Selling a dental practice – is your compliance paperwork in order?
Monday 20th February 2017

When you sell a practice, the buyer is highly likely to want to investigate the business in some detail, before making the formal commitment to buy. These investigations will cover a variety of issues, including reviewing the accounts and financial arrangements of the business.

If a specialist dental lawyer is instructed to represent the buyer, they will also make enquiries into how the practice complies with the rules and regulations affecting the dental sector. It may be sensible, when preparing a practice for sale, to ensure that the appropriate documentation is available (and in date) including:

-       Pressure vessel inspection certificates

-       Pressure vessel insurance

-       X-ray testing certificates

-       Evidence of compliance with HTM01-05

-       PAT testing certificates for electrical equipment

-       CQC registration certificate and copies of any CQC assessment/inspection reports

-       Paperwork relating to the GDS contract (for example, copies of breach notices)

-       Copies of reports following any NHS practice inspections

-       Fire risk assessment

-       Asbestos risk assessment

-       Legionella risk assessment/report

-       Evidence of maintenance of fire extinguishers

-       Evidence of maintenance of emergency drugs

-       Evidence of compliance with tax laws

-       PAYE and National Insurance records

-       Data protection registration

-       Copy statements of terms and conditions for all staff

-       Copies of any staff handbooks or manuals

-       Health and Safety policy statements and a copy of your accident book

-       Work permits for any non EU staff

-       ID for all staff

-       DBS checks for appropriate staff

-       Professional Indemnity Insurance for qualified clinical staff

-       GDC registration for qualified staff

-       Evidence of employer’s liability insurance dating back 6 years

-       A PRS licence if you play music or listen to the radio

-       A TV licence if you use a TV on the premises

This is not an exhaustive list, and the actual enquiries that may be raised will depend on the solicitor that represents the buyer, and the buyer’s own specific requirements. However, having a full suite of these documents ready for inspection can aide in speeding up the transaction.

Each of these documents is required by law for a dental practice- does the length of the list perhaps remind you of why you want to sell in the first place? 


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Are members of staff at your practice employed or self-employed (and why it matters when you come to sell your dental practice)
Tuesday 7th February 2017

The typical model you would expect to find in a dental practice is for the practice owner to employ nurses and receptionists, but for other dentists and hygienists to be self-employeed.

The question of the legal employment status of each member of staff within the business is unlikely to cause you many sleepless nights during the ongoing running of your business. But this can become an issue if a dispute arises, if you want to dismiss a member of staff or change their terms and conditions, or if you are looking to sell your business.

Associate dentists often have their own list of patients and supply their services to the practice as an independent practitioner. In turn, the practice owner provides the associate with the use of a surgery, dental materials and a nurse. The issue of dental laboratory services can be variable, with some practices allowing the associates to choose a lab of their own preference, whilst other practices require that all laboratory services are sent to one location.

The associate agreement is usually drawn up on the basis that the associate pays the practice owner a percentage of fee income.

Where the associate is carrying out NHS treatment, there are two possible scenarios: firstly, the associate holds their own NHS contract and pays the practice owner a fee for the use of the practice facilities; or, more commonly, the practice owner holds the NHS contract and allocates to the associate a number of UDAs to perform, for which they should receive a set value per unit.

However, practice owners should be certain as to the true employment status of all members of staff within their practice. Some legal rights apply only to employees, such as the rights not to be unfairly dismissed or rights in a redundancy situation. There are also tax and national insurance implications dependant on the employment status of the individual.

A practice owner is also liable for the acts of all employees during their employment at the practice, but not usually for the acts of self-employed persons.

Where individuals are ‘employees’, they have a right to a written statement of their terms and conditions. Self-employed persons do not have the same rights, although it is certainly sensible to make arrangements to formally document the agreement that you have with self-employed individuals.

To qualify as an employee, there are three minimum requirements. Firstly, the individual must have agreed to provide their work and skill personally. They are not entitled to substitute someone else to do the job. Secondly, there should be a mutuality of obligation, the employer must provide the work and the individual must accept it. Thirdly, there must be a degree of control by the employer. For example, the employer would usually be able to apply disciplinary procedures and the employee can me closely controlled in the way that they carry out tasks, their working hours and days of work. A self-employed individual would typically have a greater degree of freedom and work more independently.

You should seek legal advice if you are concerned about the arrangements you have in place in your practice, particularly where you are considering selling your business, if you have tax concerns or if a dispute arises.

When selling a practice, it is important to ascertain the legal status of each member of staff. This is because all employees will automatically transfer on to a new practice owner, under the same terms and conditions (including the same length of service) under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (which are commonly referred to as TUPE). Where individuals are self-employed, they will not automatically transfer to the buyer unless you put in place arrangements with the member of staff and new practice owner.  Self-employed staff will often have a notice period of three months within their terms and conditions and it is often therefore important to ascertain their legal status at an early stage to ensure that you have given  them sufficient notice of the sale. Whether an individual is engaged as a self-employed person or an employee may also have a bearing upon the attractiveness of the practice to a buyer, who may wish to make changes to the structure following their acquisition.

If you are unsure of the legal status of your staff, or concerned as to how this might affect a practice sale, it is sensible to discuss the situation with a specialist dental lawyer.
 


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Brabners reacts to Government’s Industrial Strategy
Wednesday 25th January 2017

The Government has launched its Industrial Strategy which is designed to drive economic growth by making it easier for businesses to work across the UK. Central to the strategy are big investments in broadband, transport and energy as well as a £556 million boost for the Northern Powerhouse.

The strategy contains a 10 point plan, including upgrading infrastructure, encouraging trade and inward investment and driving growth across the whole country. Improvements to infrastructure are badly needed if the North West region is to become a true economic powerhouse so this is a welcome announcement.

The Government also pledged to take a more active role in supporting businesses that want to target opportunities in new industries and sectors. It is an acknowledgment that regions across the UK can bring different strengths to the economy and the additional funding of initiatives like the Northern Powerhouse will help support business and encourage economic growth.

Last year Brabners released its North West Ambitions report which highlighted how a strong and efficient world class supply chain hub in the North West of England will not only be a draw to the large distribution warehouses and logistics businesses, but also a compelling reason for manufacturers and industry to locate in the North West.
 

To download a copy of the report click here.


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