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Need to Know: January 2021

Employment - Office desk by window

Welcome back and we hope you have had a good start to 2021.

We would like to introduce you to the first edition of our refreshed ‘Need To Know’ employment and HR newsletter. This month we will be focusing on Brexit. Below are some of our key articles:

HR Bullets

  • In University College London v Brown an unmoderated mailing list which included all of those in the IT department was taken down after 14 years. Mr Brown, acting in his capacity as a trade union member, set up a new unmoderated mailing list with all staff in the IT department, regardless of whether or not they were also a member of a trade union. Non-union members were given the option to opt out of the mailing list if they wished to do so.When he was asked to take down the new mailing list, Mr Brown refused on the basis that he was acting in his capacity as a trade union member. Mr Brown was subsequently given a formal warning by UCL for wilfully disobeying a management instruction.The EAT held that disciplining Mr Brown amounted to a trade union detriment and it was not open to UCL to justify a trade union detriment on the basis that trade union activities amount to a refusal to follow a management instruction.
  • In Quilter Private Client Advisers Ltd v Falconer and another, the High Court found that a 9-month non-compete and 12-month non-solicitation and non-dealing post-termination restrictions were unenforceable as being a restraint of trade.With regards to the non-compete, the Court noted that whilst the restriction applied for 9-months on a UK-wide basis, Ms Falconer operated only in a specific region and had had little time to build up strong client relationships as she had only been employed for 6 months. The Court also noted that the interests the employer was trying to protect could instead have been protected by an appropriately worded non-dealing covenant relating to its customers.As for the 12-month non-solicitation and 12-month non-dealing post-termination restrictions, the Court held these to be unenforceable due to the fact that they applied to all those who were clients of the employer in the 18 months prior to Ms Falconer’s termination and with whom Ms Falconer may have dealt with only once. The restrictions therefore went further than was necessary in order to protect the employer’s legitimate business interests.
  • In Angard Staffing Solutions Ltd and another v Kocur and another two agency workers supplied to Royal Mail were prevented from applying for vacancies at Royal Mail unless they were advertised to external applicants. They believed this to be a breach of the Agency Worker Regulations 2010, which provides agency workers with the right to be informed by the hirer of any vacancies, and the same opportunity as a comparable worker to find permanent employment with the hirer.The EAT held that the Agency Workers Regulations 2010 do not entitle agency workers to apply for and be considered for vacancies on the same terms as directly-recruited employees, but instead entitles them to receive the same level of information about vacancies from the hirer as directly-recruited employees.

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