April 18, 2021

Volume XI, Number 108

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Legal Developments Webinar 23 February – your follow-up questions answered, Part 2 (UK)

Here are two more answers to questions raised at our “Employment Law in 2021 and Beyond” webinar last week.  Answers to the immigration-related questions are on their way.

  • If you make representations to the non-compete consultation, will your name be published?  When might we see an outcome from that consultation?

  • Do we know when the new Return To Work guidance will be released by the Home Office?


  1. If you make representations to the non-compete consultation, will your name be published?  When might we see an outcome from that consultation?

It may be too late for this one, unfortunately, as the consultation closed on 26th February.  Equally, it is hard to think that they will have been overwhelmed with responses to the consultation document, so you could still try emailing your comments on the point or specific answers to the questions in the consultation paper to frederick.everitt@beis.gov.uk.

As to being named if you do, the consultation document uses the Government’s standard wording for these things, including “If you want the information that you provide to be treated as confidential, please tell us, but be aware that we cannot guarantee confidentiality in all circumstances”.  In illustration of that it then goes on “Information you provide in response to this consultation, including personal information, may be disclosed in accordance with UK legislation”, including the DPA 2018 and the FOIA 2000.

When we might see an outcome from this consultation is hard to tell.  The last review of possible changes to the law around restrictive covenants took place in 2016.  So far as we are aware, it never generated any published Government response at all.  That may have been because legally and logically the underlying premise of the consultation had more holes in it than a pound of Emmental.  The same might well be said of this one, but against the background of Brexit and the pandemic, there must surely be increasing pressure on the Government to do something to encourage the plucky British inventor in his garden shed, even if (as currently seems more probable than not) it will ultimately represent a triumph of politics over common sense.

  1. Do we know when the new Return To Work guidance will be released by the Home Office?

Not specifically, but there is some possible steer on this in the Government’s COVID-19 Spring Response document issued on 22nd February.  This indicates that it is aiming for most restrictions on physical proximity to have been removed by 21st June.  However, that is expressly subject to a number of caveats around developments in the fight against the pandemic between now and then, in particular there being no bulge in cases of any new or existing COVID variant placing excessive strain on the NHS.

Assuming that all goes to the Government’s current 4-Step plan, it will be reviewing a number of separate matters in the run-up to that June date.  These will include the possibility of some sort of individual COVID status certification, the COVID-secure guidelines for physical workplaces and the existing social distancing recommendations.  It is proposing to look again at its WFH guidance in the light of that review, but its clear guidance in the meantime is that employees should continue to work from home if they can until then.  The Response generally aims to give at least at a week’s notice of any changes, so look out for that in the middle of June.  For more details of what the Spring Response contains for employers, please see here.

The next question will obviously what that RTW guidance will actually look like.  We know from its abortive attempt to push people back to work in the Summer of last year that the Government’s heart is in people returning to offices as soon as they can.  However, we suspect that it will now have to include consideration of those who may have serious mental or physical health reasons not to RTW, and that it will need to tread a very difficult line between all the different moving parts of this equation.  Some employers want everyone back in as soon as possible, and others’ plans depend on the opposite.  Some employees are desperate to escape the kitchen table at last, and others have found new professional fulfilment from not leaving the house at all.  There will remain understandable and strongly-held fears of infection which the Government must do its best to dispel at the same time as entering clear cautions about the health risks which will unquestionably remain live well past June.

We do not expect the RTW guidance to give express support to the “no jab, no job” principle because there would have to be so many provisos and precautions to it that it might defy coherent explanation in any reasonably accessible response document.  However, do note the earlier reference to the COVID status certification possibility, which may in time become tantamount to the same thing.

 

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© Copyright 2021 Squire Patton Boggs (US) LLPNational Law Review, Volume XI, Number 62
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About this Author

David Whincup Employment Attorney Squire Patton Boggs Law Firm
Partner

Following 10 years at a Magic Circle firm, David has been head of our London Labor & Employment Practice since 1994.

His expertise gained from over 30 years as a specialist employment law practitioner cover a wide variety of employment-related issues, including individual and team recruitment issues, policy and contract drafting, disciplinary and grievance procedures, individual and collective redundancies, the defence of employee discrimination and dismissal claims and other litigation, whistleblowing, employee health, data protection and matters surrounding confidentiality and...

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