Fraudulent transactions affecting employees: Some new perspectives on the liability of advisers

Fraudulent phoenix activity and sham contracting are well-recognised issues in the context of protecting employees remuneration entitlements, both during the life of a company and after it has collapsed through insolvency. To date, much of the emphasis in dealing with these problems has been on the businesses controllers. This paper takes a different approach and ponders whether at least some of these improper and illegal arrangements could have been devised and executed without some expert advice. It asks whether a more effective approach might be to target those advisers. Several cases have considered the liability of advisers as accessories to the company s or directors breaches of legislation. While these are useful starting points, the lack of other actions against advisers, coupled with a general failure of professional bodies to caution against these illegal and improper behaviours, undermines the continued effectiveness of these decisions. A concerted effort - by regulators, courts and professional bodies - is required to ensure that advisers are persuaded that advocating these sorts of fraudulent schemes is simply not worth the risk.