Pre-packs under scrutiny again?

Baker Tilly’s purchase of the debt-laden accountancy firm RMS Tenon has put the use of pre-pack administration under the spotlight again. It follows other recent high profile pre-packs such as Dreams and Gatecrasher and the debate about Hibu as publisher of Yellow Pages.

While a pre-pack may be a useful tool for saving a struggling business by “selling” its business and assets to a new company immediately upon appointment of an Administrator, the consequences to unsecured creditors and shareholders can be catastrophic as it normally involves writing-off most of their debt and all the investors’ equity. The only beneficiaries are normally banks and other secured creditors who control the process through their appointed insolvency practitioners.

In the case of RMS Tenon, which had more than £80.4 million of debt, unsecured creditors and investors are reportedly furious that their entire debt and shareholdings have been wiped out, the more so because Lloyds TSB, its only secured lender, allegedly forced the sale by refusing to grant a covenant waiver while at the same time agreeing to finance Baker Tilly’s purchase of the assets of RMS Tenon.

While the sale has safeguarded the jobs of around 2,300 RMS Tenon staff, and this is surely to be welcomed in the current economic climate, there are plenty who will once again question pre-pack administration. It may be legal, but is it an acceptable and ethical method of rescuing a business in distress? There are other restructuring options that offer a better outcome for creditors and shareholders, such as Schemes of Arrangement and Company Voluntary Arrangement for instance. But all too often these are not pursued.

As the UK economy proceeds along its halting path to recovery the last thing that is needed is short-term and self-interested behaviour by secured creditors.

Administrator’s fees of £500k for a small firm

This shocking story in the Daily Telegraph did not name the insolvency firm who built managed to charge a staggering £500,000 for the administration of a small company with 40 employees, see http://tinyurl.com/jwzlcmc.

It appears that secured lenders pulled the plug on this small shopfitting business, presumably to recover their secured loan. The article refers to 10p in the £1 being paid to unsecured creditors.

Given that secured loans are paid ahead of the insolvency fees and that these are paid ahead of unsecured creditors, then this business had significant assets. While the fees will have been justified as representing the time and costs incurred in performing their duties, administration fees also need to be proportionate. Stories like this don’t do the insolvency profession any favours.

Insolvency firms will always justify any adopted procedure and its associated fees but sometimes we might question whether they are justifiable.  If there were sufficient funds in the business to pay such fees then why wasn’t an effort made to restructure and save it such as by using the much less expensive CVA (Creditors’ Voluntary Arrangement) procedure?

Indeed who was advising the directors and shareholders? Too often directors make the mistake of trusting the advice of an insolvency practitioner who is normally working for the secured or unsecured creditors. They rarely ever appoint their own advisors.  

All too often a company in difficulty is closed down rather than being restructured. In most cases everyone loses out: directors, shareholders, unsecured creditors and employees. 

The only “winners” in an administration are the insolvency firm and the secured creditor that appointed them.

Business pain in a recovering economy

There are two things happening that suggest that signs of economic recovery are believable, rather than government spin.

The first is the narrowing of the trade gap with a significant growth in exports in June and the second is a 10% rise in business insolvencies (compulsory and creditors’ voluntary insolvencies) in the quarter from April to June 2013 (3,978) compared with January to March (3,601).  However, there were actually slightly fewer insolvencies this year when compared with the same quarter in 2012.

Insolvencies generally do increase when an economy is coming out of recession because creditors normally start to lose patience and begin recovering debt when they can see signs of a rising market.

This time, however, I believe something else is going on.

Firstly, for more than two years now businesses have been focusing on paying down debt so why should creditors suddenly lose patience? Secondly, it may be that HMRC is taking a tougher line on collection of arrears now.

But most importantly now that the owners and directors of businesses can see the future more clearly, and there is greater optimism around, they are starting to restructure their businesses because clearly any future growth is not going to be fuelled by business lending.

It is perhaps no bad thing that growth is likely to be slow and steady and will be achieved by businesses ensuring they have enough working capital, by imposing tough payment terms on customers and suppliers and by everyone in the supply chain working together.

The worrying thing is that in other circles there is still too much reliance on a consumer-led recovery and that exports to non-EU countries were lower, playing no part in the narrowing of the trade gap.

Unintended consequences

Turning around a struggling economy, like turning a business in distress, is a complex process where it is wise to be mindful of the possibility of unintended consequences.

Here are a couple of examples of ideas and policies that seemed like a good idea at the time.

First, of course, was the idea that it was possible to mitigate the risks inherent in subprime mortgages by packaging them with safer loans and creating complex insurance products for protection such as Credit Default Swaps and we all know where that led us in 2008.

More recently, despite many warnings against creating new housing bubbles, the Government’s Help to Buy lending scheme was supposed to encourage construction firms to start building sorely-needed homes.  What has happened so far? Anaemic growth in house building, surging house prices and an explosion of Buy to Let mortgages.

Removing planning restrictions in order to make it easier to convert redundant High Street shops into homes is one scheme of many to revive struggling High Streets.  How about actually addressing the issue of sky high business rates, last set in 2008 before the financial crisis with a review postponed until 2017?   There are approximately 40,000 High Street shops currently empty. Why would anyone start up a new retail business when business rates are so high?

I am sure you will all be able to come up with many other examples. 

Two questions: why do we seem to be incapable of learning the lessons of history? Do we rely too much on social, economic and business models that can never accurately encompass the complexities of real life and real people?

Can employers expect loyalty from workers on Zero Hours contracts?

Employee consultation and support can, in our view, make a huge difference to success when a company in difficulties is being restructured.

But it has emerged that as many as 90% of Sports Direct employees are employed on part-time, Zero hours contracts, and therefore are unlikely to be eligible for the company’s recently-announced bonus payouts. It has been reported that only full-time employees are eligible for the bonus.

Given that these contracts are now used for about 1 million UK employees we should question them. 

The advantages to the employer are obvious in that they only pay for workers’ time as and when needed and there are reduced, or even no, entitlements to sickness and holiday pay, thus enabling a company to keep its overheads under control.

Despite their flexibility, which may be appropriate for a very few employees, the contracts offer few guarantees or certainties and yet could result in considerable hardship for employees due to them being expected to be available at short notice without guarantee that they will earn enough to provide a living wage.

At the same time employees on Zero Hours contracts are viewed as being in employment and therefore not eligible for any state help in weeks when they have had no work or pay.  Nor can a worker on such a contract take on any other work to supplement their income if they are required to be available at short notice.

We believe they could be abused by employers and support Business Secretary Vince Cable’s initiative for a review of Zero Hours contracts and how they are being used.

Will the new Employment Tribunal fees give employers some protection?

On the face of it the new charges on employees seeking redress for workplace issues via tribunals could be good news for employers, particularly SMEs.

In theory, as the FSB has pointed out, the £160-£250 to lodge a claim and the £230 or £950 fee if the case goes ahead ought to deter weak or frivolous claims that businesses have hitherto felt obliged to settle without contesting for fear of huge legal bills.

A client of mine recently had a male employee who, after a couple of warnings, was then made redundant. Despite ample evidence that he had had several recent girlfriends he then took the company to tribunal, encouraged by a solicitor’s no win no fee deal, for unfair dismissal on grounds of his sexual orientation as a gay man! The company settled out of court for £7000 for fear of high legal costs if they contested in court.

When turning around companies I believe in working with the unions or employee representatives when reorganising staff or redundancy. Indeed K2 now has a former union official who as our ‘Employee Liaison Officer’ specialises in managing the process. Equally, it is important that employers follow all the correct procedures when using redundancy.

However, there are some caveats about how effective a deterrent to weak claims the new payments will be.  Firstly, Unison has been granted permission for a judicial review on the introduction of fees. Secondly, costs can be reduced where there are multiple claims of two or more people against the same employer. Similarly fees can be significantly reduced or waived where a claimant cannot pay.  Thirdly will the new fees deter the “ambulance chaser” lawyers offering no win no fee deals?

In our view the jury is still out on whether this new ruling will make life easier for employers. What do others think?

Relying on consumers for restored economic growth is madness

Moderate improvements in economic activity, upwardly revised growth forecasts for the rest of 2013 and now, Bank of England figures showing increased lending to small businesses in June are to be welcomed.

Certainly coupled with a few sporting triumphs and some hot, sunny days this has all been seen as good news by politicians and some media commentators.

But look a little more closely and actually many of the figures given are still well below pre-2008 levels. In the case of SME borrowing records only began in 2011 and lending has been falling since 2009. SME borrowing may have risen a little in June but compared with a year earlier according to the BoE it is still declining, by 3.3% on the same period last year. One monthly swallow does not make a summer.

Sensible businesses are still watching their cash flow, consumer debt may be falling but is still believed to be unsustainably high, yet everyone seems to be jumping on the optimism bandwagon. Most recently the EU’s Gfk/NOP indicator is suggesting that consumer sentiment will continue to pick up.

Haven’t we been here before?  As the Telegraph’s City AM editor Allister Heath pointed out a week or so back, lessons have not been learned if everyone is relying on credit-fuelled consumer-led growth via increased activity in the housing market and rising house prices, fuelled by the Help to Buy scheme.

Isn’t it also true that our economic difficulties are where they are precisely because of a house price bubble and too much credit pre-2008? Plainly there are still lessons not yet learned.

FREE Essential Business Owner Seminar

Come and hear Tony Groom speak at the FREE Essential Business Owner Seminar organised by Accounts 4 U Direct, local accountants in Watford on Thursday next week – Register at: http://www.eventbrite.co.uk/event/7373483287

The Essential Business Owner Seminar will be held:
On: Thursday 1st August – 09:30 – 12:30 hrs
At: The Mercure Hotel Watford (on the A41)

Tony is on a panel of speakers who are passionate about helping business owners.

You will learn about:

Tax Matters
– Tax Insights and Advice
– How you can pay just 10% tax – legally!
– Preparing now for a future disposal or sale of your business

Management Challenges
– Managing and retaining customers
– Crisis management – and where to turn for help
– Protecting yourself as a director – the do’s and don’ts
– Protecting your business from fraud

The Technology of Business
– Assessing your IT systems
– Managing your data
– Understanding ‘The Cloud! and how to make it work for your business. What is “The Cloud” all about, and how can small and medium sized business owners ensure that they are not left behind.

The seminar is completely Free of Charge and will provide you valuable insights and lessons that will add to the bottom line in your business.

Register now at: http://www.eventbrite.co.uk/event/7373483287

Involving employees can be crucial to successful company restructuring

It shouldn’t be rocket science to accept that giving employees a stake in their company’s future encourages commitment and efficiency.

The John Lewis Partnership, owners of John Lewis department stores and Waitrose, is perhaps the most famous example of a company that fully involves its employees in both decision-making and a share of its profits, and now Sports Direct has announced that its staff will receive bonuses following a record year for profits.

But what happens if a company gets into difficulties and needs restructuring to survive?

Often, the employees are the last to know and this can make turning around a company much more difficult.  While directors try to keep information to themselves employees will usually know that something is wrong and an atmosphere of uncertainty may only make things worse as key people start looking for other work and productivity drops even further.

While trades unions regularly suffer from a negative press we would argue that their involvement in negotiations during restructuring can have positive benefits, not only in consulting with workers about the way forward and keeping them informed, but also in negotiating agreements should shorter working hours or redundancies be necessary. To help reassure those concerned about trusting unions to keep turnaround plans confidential there exists a protocol confidentiality agreement that was developed by the TMA (Turnaround Management Association UK) in association with the TUC.

We would be interested to hear from anyone who has had experience of union involvement in turning around a failing company.

Learn to say “no”

Most of us love a bargain but it can be a false economy if the lower price means reduced quality.

From the business perspective it can be tempting to reduce prices in order to win orders when trading conditions are challenging.

I’m seeing a lot of businesses agreeing to cut their prices, but equally a lot of them are walking away.

Why are they walking away? Because they are not prepared to compromise their own business models by acquiescing to that kind of pressure, especially if they have confidence in the quality of their product or service and have done the research to pitch a fair price that gives value for money.

A good business will only take on work on terms and at prices it feels comfortable with.  A bad business will succumb to pressure.

It’s better to grow your margins than to grow your business, in my view.  What do others think?