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Education

Known for our strength across commercial legal services, acting for a wide range of businesses in various industries, over recent years Napthens has developed a specialist legal offering for the education sector.

In particular, the arrival of key individuals with niche experience in advising educational establishments has added a real depth to our expertise in the sector.  Our highly experienced education team provides legal advice to a range of educational institutions at every level including schools (secondary and primary), colleges (including FE & HE) and universities.

Our experience in the sector ensures we provide our education clients with relevant and tailored legal advice whether on day to day issues that assists the smooth running of the organisation, on complex, high value projects or support and practical advice on difficult, contentious matters.

We advise our education clients on a host of issues including:

  • Commercial contracts and outsourcing agreements
  • Commercial property
  • Construction and engineering
  • Corporate
  • Dispute resolution, litigation and judicial review
  • Employment law and HR
  • Governance issues
  • Intellectual property
  • Public procurement
  • Trade marks and licensing arrangements
  • Education News
  • Education FAQs
  • Education Glossary

A company has contacted me with a view to erecting a wind turbine on my land. What should I do?
There has been a noticeable increase in the number of planning applications for wind turbines being submitted, with more than 3,000 turbines currently in operation in the UK. Farmers are frequently approached and offered a relatively low sum of money, and perhaps free electricity, for the use of their land to site a turbine. However, wind turbines can be worth far more to investors, and land owners should seek expert advice before making a decision.

As a farmer, why is it important to make a Will?
A Will is important as it ensures that on your death your assets are distributed in accordance with your wishes, rather than through the laws of intestacy. Dying without a Will could mean that your assets are distributed in a way that could be detrimental to the continuation of a farming business. Although Agricultural Property Relief may be available to a lot of farmers, there are exceptions to that relief and carefully formulated Wills can help to alleviate the potential burden of Inheritance Tax.

Can a trade mark be altered or added to in the future?
No. Once a trade mark has been accepted for registration it cannot be altered except for the owner's name and address and the removal of goods and services, in the event of an objection.

Can anyone stop me registering my trade mark?
Anyone who has a registered trade mark, or uses an unregistered mark which is the same or similar to the mark you are applying for, can choose to issue an objection to your application.

Can I register a name without a logo as a trade mark?
Yes, you can register a name on its own (known as a ‘word mark’) or as part of a logo. Filing a word mark gives you wider and stronger rights than registering a logo and words combined, as it prevents your name being registered by someone else in future. Registering both separately gives you the maximum protection but this is seen as two separate applications, so two sets of costs and fees must be paid to the IPO.

How can I protect my brand name?
The best way of protecting your brand name is to choose the right one to begin with! Consider searching the Domain Name Register, the register of companies at Companies House and the trade marks register at the Intellectual Property Office to check your brand name isn’t already being used. Then consider registration as a trademark. This is a very simple and relatively inexpensive way of protecting the future of your brand name, especially in comparison to the costly common law action for ‘passing off’.

How can I protect my idea?
Intellectual Property (IP) rights will not protect an idea, only the ‘expression’ of your idea. This means that in order to protect your idea, you have to turn it into something tangible – this can be a prototype, written description, chemical formula etc. You can then use the appropriate form of IP, for example registering the designs for your product using your drawings or apply for patent based on your explanation of the invention.

How long is the trade mark registration process?
The procedure for obtaining a trade mark registration in the UK usually takes approximately 4 to 6 months depending on whether you have any opposition or objections.

I am a trustee of a small charity which may be losing part of its funding and I can see us having to make redundancies or even close down. What do I do?
Call a Trustees Meeting and ask the accountants to help you with an up to date set of management accounts and a cashflow so that you can all see what is really going on. Have a realistic look at your actual and potential funding and whether it is going to be sufficient for the charity to continue. Do not take on any liabilities or expenses you cannot be sure you can afford. Take legal advice as to initial redundancy steps so you are prepared in case that becomes necessary. Consider whether you might transfer your charities activities to another charity. But take action now - it is not the end of the world if a charity has to cease operations and pass on any surplus assets to another charity.

I am assigning a lease and have been told I will have to give an AGA – what is this?
When a tenant is assigning their lease, the landlord can ask the tenant to guarantee the new tenant's performance of the obligations contained in the lease. The outgoing tenant may be required to enter into an 'Authorised Guarantee Agreement' or AGA, and this may be necessary to gain the Landlord’s consent to assign the lease. Tenants should be aware that by giving an AGA they will be guaranteeing that the new tenant performs the covenants and obligations contained in the lease - including the obligation to pay rent.

I am buying a commercial property – will I need to pay Stamp Duty Land Tax?
The rate of Stamp Duty Land Tax (SDLT) payable will depend upon the purchase price, whether VAT is payable on the purchase price and whether any SDLT relief can be claimed. SDLT will be calculated not only on the purchase price but also on the amount of VAT payable on the purchase price. It should also be noted that SDLT can be payable by a Tenant on the grant of a lease depending upon how long the lease is granted for and the annual rent payable. At present, the SDLT rates on non-residential or mixed use property or land are: Up to £150,000 - 0% Over £150,000 to £250,000 - 1% Over £250,000 to £500,000 - 3% Over £500,000 - 4%

I am buying a property that I want to convert into a restaurant. Is there anything I need to consider before I start to trade?
Some form of permission is required whenever you carry on a licensable activity, which includes the sale by retail of alcohol, providing regulated entertainment, the provision of late night refreshment etc. For a restaurant where the activities are likely to be carried out routinely on a permanent basis, a premises licence would be the most appropriate permission. A premises licence can take four to eight weeks to obtain and if you intend to sell alcohol you will also need a personal licence which can take longer, so licences should be considered at an early stage when buying a premises or looking to set up a new business.

I am buying a property that I want to convert into a restaurant. Is there anything I need to consider before I start to trade?
Some form of permission is required whenever you carry on a licensable activity, which includes the sale by retail of alcohol, providing regulated entertainment, the provision of late night refreshment (hot food or drink between the hours of 23:00 and 05:00) etc. For a restaurant where the activities are likely to be carried out routinely on a permanent basis, a premises licence would be the most appropriate permission. A premises licence can take four to eight weeks to obtain and if you intend to sell alcohol you will also need a personal licence which can take longer, so licences should be considered at an early stage when looking to set up a new business.

I am in business with my family, do I need a Partnership Agreement?
Without a Partnership Agreement your partnership is governed by the basic terms contained in the historic Partnership Act 1890. The main issue is that if one party wishes to retire or dies, the partnership will automatically end and their share of the partnership must then be distributed to him/her or under his/her will. On many occasions, this leads to family break ups and partnerships being unable to continue. Having a Partnership Agreement will prevent this, by outlining a strategy on the future of the business and any potential sale and agreeing a clear procedure for the departure of any owner.

I am looking to buy a commercial property. What searches will I need?
It is up to the buyer to find out as much about the property as possible. This can be achieved by asking the seller to reply to pre-contract enquiries. You should also undertake searches designed to reveal information that the seller may not provide; these include Local, Drainage and Environmental Searches, to name but a few. In addition it is recommend that the property is surveyed, and the survey should reveal any physical defects in the property. However, 'caveat emptor' applies...so buyer beware!

I am proposing to close one of the company’s sites. What should I do?
If you are proposing to make 20 or more employees redundant you must follow a procedure known as 'collective consultation'. The number of proposed redundancies will determine the time frame of the consultation. You must also submit a HR1 form with the insolvency service. As with any redundancy process a fair and reasonable procedure must be followed.

I am renting a commercial property and my tenant is defaulting on their rent payments. What can I do?
Firstly, consider whether you want to reclaim the property or just receive payment for the outstanding rent. Also bear in mind the means of your tenant to actually pay the outstanding arrears, as this may affect your strategy. The first thing to do is check your tenancy agreement, as this will help assess the options available, and it may be that your lease contains a forfeiture provision. Even if there is no forfeiture provision, there are various options - you may be able to issue proceedings against your tenant for payment of rent arrears or possession of your property, issue a statutory demand or pursue undertenants or guarantors for the debt.

I am renting a commercial property and my tenant is defaulting on their rent payments. What can I do?
Firstly, consider whether you want to reclaim the property or just receive payment for the outstanding rent. Also bear in mind the means of your tenant to actually pay the outstanding arrears, as this may affect your strategy. The first thing to do is check your tenancy agreement, as this will help assess the options available, and it may be that your lease contains a forfeiture provision. Even if there is no forfeiture provision, there are various options; you may be able to issue proceedings against your tenant for payment of rent arrears or possession of your property, issue a statutory demand or pursue undertenants or guarantors for the debt.

I had a debt which I pursued through the small claims court. I obtained a judgement, but my debtor has still not made a payment. Is there anything I can do?
You have many options to enforce your debt. The exact option you take will depend upon the debtor’s circumstances and available assets. For example, if they are in full time employment, you could ask the court for an order to deduct a sum of money from their earnings. Equally, if they own a property, you may be able to obtain a charging order against their house.

I have an employee who is ‘bad mouthing’ the company, what can I do?
You may have grounds to discipline or dismiss if the employee is bringing the company into disrepute. You must carry out a thorough investigation as part of the disciplinary procedure in accordance with the ACAS Code to decide on the appropriate action. You may also consider whether the company could bring any other action against the employee in relation to defamation.

I have just discovered that an employee has been stealing from the company. What can I do?
You may have grounds to dismiss for Gross Misconduct and if you wish to pursue that you should follow a fair and reasonable disciplinary procedure. You should consider the ACAS Code of Practice if you do not have your own up to date policy.

I have often heard the term “dilapidations” referred to in relation to commercial leases, what does this mean?
Dilapidations is a general term used to describe items of disrepair, most often used in reference to matters covered by the tenant's obligations contained within a lease to repair a property. The term is often seen in the context of the repair works which a tenant is required to complete at the end of a lease, in order to bring the property up to the standard required when returning the property to the landlord. Parties to a lease need to carefully consider potential dilapidations liabilities before completing a lease.

I intend to sell or let out a commercial property, do I need to obtain an Energy Performance Certificate?
An Energy Performance Certificate (EPC) is required in almost all cases where a commercial property is being sold or let and should be obtained prior to the property being offered for sale or to let. There are some very limited exceptions where an EPC is not required (e.g. places of worship) and if in any doubt you should discuss the EPC requirements with your agent or legal adviser as soon as possible.

I own a small business. Recently, one of my biggest customers has hit a rough patch and is refusing to make payment. What can I do?
Firstly, try and keep a good relationship with your customer. See if you can settle the matter amicably in order to maintain the business relationship. Should that fail, the first step would be to issue a 'Letter Before Action' advising them that in lieu of payment, the matter will be taken to court. Their response would then dictate how the matter is taken forward, and if further action was needed, there are various options available for pursuing the debt.

I run a brewery and most of my sales are to pubs, but I do allow members of the public to buy beer from me if they wish. A local Police officer has recently told me that I am not allowed to do this. Why not?
Sale of alcohol by retail (i.e. to the end consumer) is a licensable activity and should therefore be covered by a premises licence. The wholesale of alcohol (i.e. the sale to a retailer such as a pub) is not a licensable activity and so does not need a premises licence. Selling alcohol by retail without an appropriate permission is punishable by an unlimited fine and / or up to six months in prison so you should either make a decision only to sell alcohol wholesale or stop selling alcohol to the public until you have obtained a premises licence.

I run a nightclub and the Police have told me that I need to employ door supervisors over the weekend. I have never done that before and don’t see any need to. Do I have to do what they say?
It is common that a premises licence will contain a condition requiring door supervisors to be utilised at certain types of premises. If it is a condition on your premises licence then you would be advised to either use them (given that breach of a premises licence condition is punishable by an unlimited fine and / or six months in prison) or vary your licence to remove the condition. If it is not a condition on your premises licence then you are not legally required to use them, but if the Police feel strongly that door supervisors are needed then they could apply for the premises licence to be reviewed by the Licensing Committee to try to make it a condition. Conditions should only be placed on a premises licence where the committee considers them to be “appropriate” and “proportionate”.

I run a nightclub and the Police have told me that I need to employ door supervisors over the weekend. I have never done that before and don’t see any need to. Do I have to do what they say?
It is common that a premises licence will contain a condition requiring door supervisors to be utilised at certain types of premises. If it is a condition on your premises licence then you would be advised to either use them (given that breach of a premises licence condition is punishable by an unlimited fine and / or six months in prison) or vary your licence to remove the condition. If it is not a condition on your premises licence then you are not legally required to use them, but if the Police feel strongly that door supervisors are needed then they could apply for the premises licence to be reviewed by the Licensing Committee to try to make it a condition. Conditions should only be placed on a premises licence where the committee considers them to be “appropriate” and “proportionate”.

I run a pub and want to stay open to show the ‘big fight’ which is on later than we normally trade. Can I?
If the pub is an existing business then it should already be covered by a premises licence which will state what activities you are permitted to carry on at the premises, what times you are permitted to carry them on and usually what times the premises are permitted to remain open to the public. There will also be a set of conditions that govern how you carry on the permitted activities. Showing a live television program is not a licensable activity so it is likely to come down to the hours on the licence. If you wish to remain open later than the hours that are permitted by licence then you will either have to vary the licence to extend the hours on a permanent basis or submit a temporary events notice to extend them temporarily.

I was the director of a small business and agreed to be the guarantor of a loan. The company has since gone under and the bank is demanding that I repay the loan. I am worried that I might lose my home. What can I do?
The first step is to fully review the guarantee, as a matter of urgency. Depending on your liability (and your ability to pay) try contacting the lender to arrange a payment plan. If you are fully liable, and are unable to make an offer which the bank will agree to, then it may be appropriate to speak to an insolvency specialist to discuss the various options available to you.

I work in a bar and the owner has recently promoted me and asked me to become the Designated Premises Supervisor. What does this mean?
Every premises licence which allows the sale of alcohol should have a Designated Premises Supervisor and that is the person who has day-to-day responsibility for the running of the premises. To be a Designated Premises Supervisor you need to have a personal licence. To obtain that you need to sit a course and pass an exam, obtain a DBS check and make an application to your local authority.

I’ve got my brand protected by registering the name at Companies House and as a domain name (.com and .uk) so do I still need to register it as a trade mark?
Registering your brand as a company name or with variations of domain names is a great first step in protecting your brand, but it is not trade mark protection. It will not give you civil or criminal sanctions to use against someone using your mark and it does not give you any protection if you haven’t used your mark at all as yet or you’re a small start up business.

It looks like my neighbour has encroached onto my land with his boundary or building. Is there anything I can do?
In essence you may have a civil claim for trespass against your neighbour and if your claim is successful this could result in your neighbour being evicted from your land and/or the building being removed. If however, you have been notified of the encroachment due to your neighbour's claim for adverse possession over the land, then the procedure will be slightly different. Of course, it is always better to try and resolve such matters amicably wherever possible.

My business partner and I wish to go our separate ways. What are our options?
It very much depends on the type of business as to your specific options (eg are you a partnership, a limited liability partnership, a company etc). The first step is to check any shareholder or partnership agreements that may be in place, to see if these contain any procedures for partner exits. It may be possible to simply close or sell the business if there are no outstanding issues or unresolved disputes. If there are any issues (a disagreement over the assets of the business, for example) then the first step is to once again check any shareholder or partnership agreements, to see what dispute resolution clauses are contained within. It is also important to consider any personal guarantees or liabilities you may have in connection with the business (eg borrowings from the bank may be guaranteed by directors of a limited company or the partners in a partnership)

My company is in financial difficulty and there is not enough work for my employees. However, there is some hope that we may seal a large contract soon. What can I do in the interim?
Employers have no statutory right to lay off employees or place them on short-time working without their express consent, unless you have a right in the contract of employment to do so. Any employee who is laid off or kept on short-time working may be entitled to a statutory redundancy payment. If the poor financial situation continues the business may consider a re-organisation or at worst insolvency proceedings if appropriate.

My employee has suddenly resigned and I suspect he has taken client contact details and the designs of our product. What can I do?
Look at your employee’s Contract of Employment to check if there are confidentiality provisions or post-termination restrictions in the contract that can be enforced. There may also be Intellectual Property clauses which state that all work the employee has created remains the property of the employer. In the absence of any Contract, there are still some implied terms of confidentiality that all employees are bound by.

Once my trade mark is registered do I have the rights to that name anywhere?
Only in the course of business in the UK for the goods and services in which you have registered your mark. Outside of the UK, you must consider a similar process in that country or region. We can still help you with this if you might need this type of protection.

Our charity has been running for 20 years and during that time the need for our services has changed, and in some cases disappeared, but we see new areas of need opening up. What can we do?
A charity’s ‘objects’ (which are the specific activities it is authorised to carry out and to which donors contribute) cannot be changed without the consent of the Charity Commission. However the Commission recognise that times change and so do the types of need society has. They will usually look favourably on a proposal to alter objects by updating and adapting them - for example by extending care for the elderly into possibly respite care to assist families of dementia sufferers - especially if the changes have the support of supporters and members of the charity.

Our charity was formed as a trust 15 years ago to provide club facilities for children, but we are concerned about the risk of being held liable as trustees if anything goes wrong. What can we do?
First check that the charity and trustees have all necessary insurance. Then consider incorporating the charity as a limited company (or one of the new Charitable Incorporated Organisations). That would allow the operations of the charity to be conducted by the company or CIO rather than by the Trustees themselves, and will proved a measure of protection. The process involves some legal steps but as trustees you serve for no reward and are entitled to have some peace of mind about possible liabilities.

Should I register my land?
Whilst it is not compulsory to register your land until certain dispositions are completed (eg a gift of land) there are advantages to voluntary registration of your land. Land Registry registration fees are cheaper for voluntary registration than they are for compulsory registration. Farms can often have large deeds packets containing complicated conveyances and it is wise to consider registration at a relatively quiet time, rather than dealing with the unregistered title deeds at a time when you wish to complete a transaction urgently. A further advantage is that once your land has been registered it is harder for other people, for example squatters, to obtain title to your land.

Someone has copied my entire website under a very similar domain name – can they do this?
No. The content and look and feel of a website can be protected by intellectual property regulations. This includes copyright in both the visible content as well as the underlying source code. Images and graphics are also protected by copyright legislation.

Someone has set up in direct competition using my company name and logo – what can I do?
Has your name or logo been registered as a trademark? If so, it is possible to take action to stop their infringement of your trademark. If not, your main option is to rely on the common law of action against ‘passing off’. This means that you would have to: Have the necessary good will in your name or logo Prove that there is a likelihood of confusion in the mind of the public between the two brands or company names and finally Prove that damage is being caused to your business by their use of your business name / logo. Proving ‘passing off’ is a complex process, and it is therefore much better to protect your brand with a trade mark application.

We have had changes of charity trustees at meetings over the years but now none of them have their names on the charity’s property Title Deeds and some of those shown on the deeds are dead. What do we do?
It is important to take advice to record and formalise appointments and resignations so that property titles can be updated, and then make sure that you record them properly in future. Fortunately the dead ones should be the easiest to sort out!

What happens if someone objects to my trade mark registration?
It is possible to seek to negotiate an agreed position with the objecting party, put your case to the IPO as to why the objection should not be upheld, or simply withdraw your application altogether.

ACAS

AGA

Agent

Alternative dispute resolution (ADR)

Arbitration

Assignment

Assignments

Attachment of Earnings

Authorised Person

Authorised Person

Bailiff

Bankruptcy

Breach of contract

Break Clause

Charging Order

Civil ceremonies

Civil marriage

Civil partnership

Claim

Classes

Club Premises certificate

Comfort letters

Company seal

Compromise Agreement

Confidentiality agreement/non-disclosure agreement

Confidentiality Agreements

Consideration

Constructive Dismissal

Copyright

Counterclaim

County Court Judgment (CCJ)

Covenants

Creditor

Damages

Damages

Database rights

Debtor

Default Judgment

Defended Claim

Design rights

Designated Premises Supervisor (DPS)

Dilapidations

Disciplinary action

Disclosure and Barring Service (DBS) Check

Discrimination

Dispute

Due diligence

Employment Appeal Tribunal

Employment contract

Employment Tribunal

Enforcement

Equal Opportunities

Forfeiture

Franchising

Freehold

Garden Leave

Going concern

Grievance

Gross Misconduct

Guarantee

Guarantor

Hackney carriage

Harassment

Injunction

Insolvency

Interim order

IP due diligence and auditing

Joint and several liability

Joint venture

Joint Venture Agreements

Jurisdiction

Know-how

Late Night Refreshment

Leasehold

Letter Before Action

Liability

Licences

Licensable Activities

Licensing Authority

Limited liability

Liquidation

Liquidation

Mandatory Conditions

Mediation

Misconduct

National Minimum Wage

Non-Disclosure Agreements

Notice / Notice Pay

Objection

Operating Licences

Operating Schedule

Parent company

Partnership

Passing off

Patents

Personal Function Licence (PFL)

Personal Guarantee

Personal Licence

Premises Licence

Premises Licence Condition

Private Hire operator

Private hire vehicle

Provisional Statement

Proxy

Quorum

Redundancy

Registered office

Regulated Entertainment

Rent

Rent review

Repossession

Restrictive covenant

Review

Risk Assessment

Sale of Alcohol by Retail

Service contract

Settlement

Shareholder’s agreement

Sheriff

SIA Door Supervisors

Slander

Statement of Licensing Policy

Statutory Demand

Subject to contract

Subletting

Temporary Events Notice (TEN)

Term

Test Purchase

Third Party Debt Orders

Trade Secrets

Trademark

TUPE

Unfair Dismissal

What is (and isn’t) a trade mark?

What is an Objection?

What is an Opposition?

What is the IPO?

Whistleblowing

Wholesale of Alcohol

Winding Up

Without Prejudice

  • Andrew Holden
    Litigation
  • Keith Melling
    Head of Commercial Division
  • Leigh Child
    Construction & Engineering
  • Oliver McCann
    Employment & HR
  • Paul Hardy
    Commercial Property
  • Phil Brown
    Corporate
  • Sian Spencer
    Litigation
  • Sophie Coane
    Commercial Property
Rely on your team...