Podcast: non-compete clauses

We’re absolutely delighted in this month’s podcast to welcome our first guest speaker, Paul Goulding KC. Paul’s experience in employee competition litigation and team moves is unrivalled, which makes him the perfect person to discuss the Government’s proposed reform of non-compete restrictions. Join him in discussion with Matthew Ramsey.

Holiday pay

Statutory holiday (which can be supplemented by additional contractual arrangements) is governed by the Working Time Regulations (Regulations), which are based on the EU Working Time Directive (Directive). The Regulations do not allow payments in lieu of holiday, except on termination of employment, when accrued but untaken leave can be paid out. A simple formula is provided in the legislation, but that can be set aside either in a collective agreement, or in the employment contract. The Employment Appeal Tribunal has recently considered whether such a provision can produce a payment lower than the statutory formula would generate. The answer is a resounding no. The Directive, and therefore the Regulations, give workers a right to paid time off, and what counts as pay has been exhaustively litigated over many years.  It would be contrary to the purpose of the legislation is workers could agree to receive anything less than their normal pay in accordance with the statutory formula. It used to be relatively common to see contracts purporting to pay workers £1, or some other nominal sum, on account of any accrued but untaken leave. Those kinds of provision should now be avoided. If your organisation has this kind of wording, please feel free to get in touch.

New legislation

Three new pieces of legislation have been enacted: 

• the Neonatal Care (Leave and Pay) Act 2023 creates a new right to paid time off where a baby requires additional medical support;
• the Carer's Leave Act 2023 gives carers a new right to unpaid time off; and
• the Protection from Redundancy (Pregnancy and Family Leave) Act 2023 gives additional protection to a wider group of employees taking family leave. 

None of these measures has yet come into force – we will explore the finer details of these interesting new developments in next month’s podcast.

Female health

Many clients incorporate measures into their employee handbooks or flexible benefits packages specifically targeted at removing some of the barriers that still limit women in the workplace. Ongoing issues around equal pay are just the most obvious of these. Gender-specific health is increasingly being recognised as a vital part of the mix, and a targeted focus on the different ways that menstruation and the menopause can inhibit career progression is becoming more common. To assist employers in that process, the British Standards Institution has published some very useful guidance on menstruation and the menopause, looking at how policies and procedures, and supportive working practices, can help to alleviate some of the obstacles facing women. 

Reproductive health

Although there is no formal statutory right in the UK for time away from work for fertility treatment, many organisations include this as part of their employee offering, recognising its importance in recruitment and retention. The CIPD has published helpful guidance on fertility, looking at best practice in supporting employees with fertility challenges. HR teams interested in this area will find the guidance helpful in developing internal policies and support mechanisms.

Whistleblowing

In May, the FCA published its findings from a qualitative assessment survey it conducted back in January 2022 to explore the experiences of whistleblowers reporting to it. As a result of the feedback received, the FCA is hoping to make improvements to its whistleblowing regime. Our litigation colleagues look at the findings in more detail in this article.