Changes are afoot

May 12, 2023 | Blog, Legal Updates

 Changes are afoot – post termination restrictions and Brexit.

Ok so not the most exciting content but necessary just the same.
Post-termination restrictions
The first proposed change I wanted to tell you about is that the Government are saying that they intend to introduce some new legislation which will affect one of the most used post-termination restrictions, the non-compete clause.

In a nutshell, many businesses will include restrictions in their contracts that say what an employee can or can’t do once their employment has come to an end. There’s never previously been any statute around the time limits, although it’s generally accepted that anything over 12 months wouldn’t be enforceable.

Anyway, the proposal is to restrict the restrictions (see what I did there?!) to three months. That’s three months from the date of termination so periods like garden leave or working notice wouldn’t be included from a “starting the clock” point of view. 

This new law wouldn’t affect non-solicitation clauses which are still subject to the “no more than is reasonably necessary to protect the employer’s legitimate business interests” test; nor would it affect confidentiality clauses. 

Time wise? Who knows! It will require primary legislation so we don’t have a timescale on when this might happen. If and when it does, we’ll be in touch to remind you to check your contracts of employment. 

Brexit Schmexit  Enough said.

What I do need to say though is that there are some proposed important changes to employment law that you need to know about.

First off, Working Time Regulations (WTR) see three proposed changes.

1. Merging normal holiday leave with additional holiday leave to create one entitlement. This COULD (don’t quote me!) mean that we go back to the old way of calculating holiday pay instead of including commission, overtime etc etc. I know, I know. Seriously, don’t start – it’s taken me this long to be able to clearly explain how to properly calculate holiday pay and here they are, proposing to change it all over again.

2. Allowing “rolled-up” holiday pay*. This has been technically unlawful under EU law for some years but it could be allowed once again. 

*“Rolled-up holiday pay” refers to a practice whereby the employer pays an additional amount on top of the normal hourly rate of pay, with the additional amount intended to represent holiday pay, instead of the employee taking the time off at the time they receive the payment.  

3. Removing the requirement for record-keeping under the WTR for working hours. 

There’s also a proposed change to TUPE which isn’t terribly exciting and is only relevant if you’re planning to be involved in a TUPE situation in the future (poor you if you are – it can be a right pain!).

And yeah. That’s it for now. Don’t say I don’t bring you all the exciting news as it happens.
Do give us a call if any of this is unclear or you wonder how it applies to you


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