Experts cheaper than courts

J B writes: My business partners and I own and operate a group of companies. Unfortunately, we’ve had a boardroom “bust-up”. I’m prepared to sell them my shares and move on. However, our relationship has badly deteriorated and we have been unable to agree a fair price. I have been told that expert determination would be a good way to resolve this but I don’t know much about it. What is expert determination and what are its advantages over court-based litigation?

“Expert determination” is a private process over which the parties have control, including the choice of “dispute resolver”, writes Daniel Djanogly, chartered arbitrator and forensic accounting partner at Kingston Smith LLP.

In director/shareholder share-valuation disputes such as this, expert determination offers a binding solution, which is less costly than litigation and quicker to obtain.

Some contracts, articles of association or shareholders’ agreements state expert determination must be used to resolve particular issues.

Under this process, an independent expert is asked by the parties to resolve one or more issues, and the parties agree to be bound by the decision.

Expert determination can also be suitable for issues arising from the sale of a business and, in particular, its completion accounts or deferred consideration provisions, the profit share in a partnership, or the revenue/cost/profit share in a joint venture.

Can I sack a long-term sick employee?

M R L writes: One of my employees, who has been with me for 18 months, is currently off ill due to stress. He has now been absent for three months on full pay. I am paying somebody to perform a job when he is not even at work. Am I able to dismiss him or do I need to follow some sort of disciplinary procedures? If this is the case, am I still liable to pay him full pay or can I pay him SSP?

In this situation, you should consider whether reasonable adjustments may help the employee return to work, writes Peter Done, managing director of Peninsula.

Also, you need to clarify if his condition falls under the Disability Discrimination Act as you may have a legal requirement to make adjustments. In addition, you should consider writing to the employee’s GP — with his consent — asking when a return to work is expected and what type of work he can do.

Where the employee’s job can no longer be kept open and no suitable alternative is available, the individual should be consulted and warned of the likelihood of dismissal.

Your firm’s procedures must be followed in all cases of formal action.

As regards payment, this would depend on your contractual arrangements for company sick pay and any previous practice of paying staff on long-term sick leave.

Kingston Smith LLP, the chartered accountant, and Peninsula, the employment-law firm, can advise owner- managers on their problems. Send questions to The Business Doctor, The Sunday Times, 1 Pennington Street, London E98 1ST, or fax to 020 7782 5765. Advice is given without legal responsibility.

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