HR briefing - December 2022

21 December 2022

A festive greeting to all our readers and listeners! Welcome to this month's briefing for HR teams and in-house employment counsel – bringing you employment law highlights in an easy-to-read package, and now with an easy-to-listen-to podcast.

Accent discrimination

Clients have always been interested in ensuring they can recruit and retain the best talent, irrespective of background. Whilst the focus has traditionally been on the protected characteristics set out in the Equality Act 2010, firms are increasingly looking at eliminating prejudice stemming from other sources as well. In a fascinating recent report, the Sutton Trust has examined accent discrimination, with an alarming number of survey respondents reporting that their accents had been mocked or singled out by colleagues at work. In the second episode of our new podcast series, Chris Boyle joins Matthew Ramsey in exploring how employers can engage with issues of class, socio-economic background and accent.

You can subscribe to The Macfarlanes Podcast on your favourite podcast platform to hear this, plus more interesting content from other parts of the firm. If there are topics you’d particularly like us to cover, please feel free to reach out to us.

Flexible working

The Government has committed to supporting new draft legislation to reform the flexible working regime. A comparison of the current and proposed position is set out in the table below.

   Current position  Reform proposal
 Qualifying period of service before application may be made  26 weeks  None – this will become a "day-one" right
 Number of requests that can be made in a 12-month period  One  Two
 Grounds on which request may be refused  Burden of additional costs
 Detrimental effect on ability to meet customer demand
 Inability to re-organise work among existing staff
 Inability to recruit additional staff
 Detrimental effect on quality
 Detrimental impact on performance
 Insufficiency of work during the periods the employee proposes to work
 Planned structural changes 
 No change
 Requirement to consult employee before reaching decision  No – although the Acas guidance and Code of Practice in this area strongly recommends consultation  Yes
 Time limit to complete the decision-making process  Three months  Two months

Copyright and confidential information

Clients typically look to post-termination restrictive covenants and confidentiality provisions to protect their business-critical information and clients. What is often overlooked is the additional protection that can be offered by intellectual property law: copyright, patents, trademarks, databases and so on. A recent High Court decision exemplifies this. A number of employees of a business that manufactures and services environmental test chambers set up a competing enterprise that looked to service those chambers. In doing so, they systematically made use of their ex-employers software, passwords and client lists. They were not subject to post-termination restrictive covenants, although their contracts did contain confidentiality clauses. The court found a number of confidentiality breaches, as well as a number of breaches of copyright under the Copyright, Designs and Patents Act 1988. Copyright can extend to computer software programmes, and an infringement can occur by copying, storing electronically or publishing the copyright material. The court also found a breach of the Copyright and Rights in Databases Regulations 1997, under which the creator of a database can assert ownership of it, whether or not the material within the database is itself confidential. Restrictive covenant litigation often focuses on whether client and customer lists are truly confidential. Here, that debate was unnecessary as an effective remedy was available through this alternative database claim.