WILL YOU PASS THE RED FACE TEST?

Naming and shaming of late payersdue to arrive in April 2017  in respect of goods and services other than financial services

By James Gill, Lewis Silkin LLP 

James Gill
James Gill

From 6 April this year, it is expected that all large UK companies (and limited liability partnerships) will come under a new regime which requires them to publish, on a Government website, detailed reports on their supplier payment policies and practices. The proposed Regulations are designed to create public transparency of large businesses’ payment policies and practices, primarily for the benefit of small and medium-sized suppliers.

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Late payment of invoices is considered by the Government to be a widespread issue, with a particular impact on small businesses. In 2008, a voluntary Prompt Payment Code was introduced, to which there are now some 1,800 signatories, and which serves as a kite mark for treating suppliers fairly. However, due to the practices of some corporates, the Government has decided that Regulations imposing some mandatory rules are required. When the Regulations were first proposed, the then Minister for Business and Enterprise stated that “We are determined to make Britain a place where late payment is unacceptable and 30-day terms are the norm – with a clear 60-day maximum.” In their revised form, the Regulations don’t go as far as mandating specific payment terms, but they will create transparency which is likely to have the effect of reducing payment terms for some suppliers.

So what do finance professionals and finance teams need to do to adapt to this change?

  1. Who is covered by the new Regulations?

  The Regulations apply to a company that meets two or more of the following “turnover”, “balance sheet” and “average number of employee” thresholds on both of its previous two balance sheet dates:

  • its annual turnover exceeds £36 million
  • its balance sheet total exceeds £18 million
  • it has more than 250 employees on average

Both quoted and unquoted companies are caught. The obligations apply at an individual entity level, although a parent company must only report if it qualifies as large itself under the separate thresholds applicable to parent companies.

The Regulations do not apply to a new company in its first financial year as it will not know whether it will exceed the qualifying size thresholds. A company in its second financial year will be caught if it met two or more of those thresholds on the balance sheet date in the previous year.

The same criteria also apply to LLPs.

  1. What types of contracts are covered?

The Regulations apply to all contracts for the supply of goods (including IP and other intangibles) and/or services.  However, you can breathe one sigh of relief as they do not cover a) financial services[1]or b) contracts without a significant connection to the UK.However, the Regulations may apply to the purchase of other goods and/or services, such as technology, catering, cleaning, security, etc.

  1. When do they apply?

The Regulations are currently in draft form but are expected to apply from 6 April 2017. This means that a business whose next financial year starts on or after this date will be caught this year.

A business whose next financial year starts between now (February 2017) and 5 April 2017 will not need to address the Regulations until its next financial year starts in 2018 

  1. What information needs to be report?

Information that must be provided includes (among other things):

Details on payment terms

  • ‘standard payment terms’, expressed in days
  • details of any variation to those terms, including in relation to any prior notification or consultation with suppliers

Details on payment practices

  • ‘average’ number of days taken to pay (which means the ‘arithmetic mean’, which should help to avoid a distorted picture)
  • percentage of payments paid:

– within 30 days

– between 31 and 60 days

– over 60 days

  • percentage of payments not paid within the contractual payment period (one to watch!)
  • whether the company has deducted money from a contract as a charge for a supplier to remain on its supplier list (another one to consider carefully)
  • the company’s dispute resolution process for contractual payments
  • whether the company offers e-invoicing (including invoice tracking) and supply chain finance
  • whether the company is signed up to a voluntary payment code and, if so, which one (consider PR benefits here versus the cost of complying with the code)

There is no requirement to report on interest paid on late payments

Online reporting portal

Details of the Government’s online portal where the reports will need to be published have not yet been provided. It is expected that access will be given to the platform in April.

  1. How often and when do we need to report?

Banks, finance houses and all other large corporates will need to publish a report twice yearly within 30 days after the end of each reporting period. The reporting periods are linked to the company’s financial year and are generally the first and second six months of each financial year. This means we may not see the first report until the Autumn.

It is also important for financial teams to note that 30 days really doesn’t give much time to prepare the report in respect of the previous reporting period, so preparation and planning will be key so as not to overburden staff or be late.

  1. What happens if I do not comply? 

Offences

Breach of the reporting requirement is a criminal offence for the company and its directors. There is a (limited) ‘reasonable steps’ defence for directors.

It is also an offence for a person (knowingly or recklessly) to publish a report, or make a statement (for such purpose), that is misleading, false or deceptive in a material element.

Reputational fallout?

The Regulations are designed to generate transparency, public scrutiny and a change in behaviour for some businesses. A key question for every Board and management team is to ask itself “Will we pass the red face test?” Once the online portal is up and running, you can expect canny suppliers to compare any payment terms that you offer them against the published figures that you have agreed with other suppliers. See the Government Response.

  1. What should be done now?

It is important to ascertain how easily you can obtain this information, check if the information is accurate and see how processes and systems might be improved to make the task easier for future reporting.

Payment practices need to be reviewed and appropriate remedial steps implemented if disparities in terms offered (or observed in practice) prove embarrassing or otherwise impact a business.

A voluntary payment code is also another option open to businesses and the pros and cons of signing up to one should be weighed up by the Finance, Procurement and Legal teams

Close attention should also be paid to the Government guidance (released at the end of January), with an eye to the final form of the Regulations and any reporting portals that the Government might make available.

  1. Closing thoughts

It is easy to see why the Government wishes to help suppliers who may not be paid quickly enough. However, it will be interesting to see the extent to which the Regulations change behaviour in practice by the banking and financial services community and how they adapt. Inevitably, some suppliers will be paid more quickly than in the past. However, some large banks and others in the finance sector may choose to take the reputational risk. Others may also find ways of adjusting their purchasing behaviour in a manner that attracts less public scrutiny but which offsets the cost of having to pay sooner. One simple way of achieving that, of course, is to negotiate down pricing.

James Gill, Partner Head of Commercial & Technologyat Lewis Silkin LLP

[1]“Financial services” is defined in s3 Small Business, Enterprise and Employment Act 2015 as service of a financial nature, including (butnot limited to)—

(a) insurance-related services consisting of—

(i) direct life assurance;

(ii) direct insurance other than life assurance;

(iii) reinsurance and retrocession;

(iv) insurance intermediation, such as brokerage and agency;

(v) services auxiliary to insurance, such as consultancy, actuarial, risk assessment and claim settlement services;

(b) banking and other financial services consisting of—

(i) accepting deposits and other repayable funds;

(ii) lending (including consumer credit, mortgage credit, factoring and financing of commercial transactions);

(iii) financial leasing;

(iv) payment and money transmission services (including credit, charge and debit cards, travellers’ cheques and bankers’ drafts);

(v) providing guarantees or commitments;

(vi) financial trading (as defined in subsection (2));

(vii) participating in issues of any kind of securities (including underwriting and placement as an agent, whether publicly or privately) and providing services related to such issues;

(viii) money brokering;

(ix) asset management, such as cash or portfolio management, all forms of collective investment management, pension fund management, custodial, depository and trust services;

(x) settlement and clearing services for financial assets (including securities, derivative products and other negotiable instruments);

(xi) providing or transferring financial information, and financial data processing or related software (but only by suppliers of other financial services);

(xii) providing advisory and other auxiliary financial services in respect of any activity listed in sub-paragraphs (i) to (xi) (including credit reference and analysis, investment and portfolio research and advice, advice on acquisitions and on corporate restructuring and strategy).

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