Osborne Clarke Employment Law Coffee Break | Team moves, business travel and the latest on right to work checks

Written on 18 Feb 2021

Welcome to our Employment Law Coffee Break in which we highlight the latest developments and issues impacting UK employers.

Steps to consider when an employee prepares to act in competition

Following on from last week's podcast on spotting the signs of employee misconduct, this week Peter Sheppard, partner in our Disputes and Resolution team looks at the legal and practical steps employers should consider when they become aware that an employee is preparing to act in competition. Listen below.

A recent Court of Appeal (CA) decision also provides a timely reminder of the legal repercussions for a business in receiving information from a new joiner, taken from their former employment.  Here, the CA upheld the High Court decision that a business was in breach of an equitable duty of confidence when it misused  information provided to it by sales consultants who had formally been engaged by a competitor as "if [it was] aware that some of the information was likely to be confidential a reasonable person in [their] position would make enquiries". Here, if it had done so, it would have discovered that some of the information disclosed to it came from its competitor's client database and was therefore confidential to the competitor.

The relevant question to consider is what, if any, enquiries a reasonable person would make; this will inevitably depend on the particular situation. The sales consultants were also found to be in breach of the implied terms in their employment contracts and equitable obligations of confidence with their former employer when they took the confidential client information. In this situation, a former employer should consider remedies and options available against its former employee and the new employer.

Business travel as free movement ends

Whilst Covid-19 continues to restrict almost every aspect of life, many businesses are looking ahead at the impact of the EU-UK Trade and Cooperation Agreement (TCA) on the movement of staff now that free movement between the UK and the EU has ended. Businesses are having to plan their staff travel carefully for the first time in decades, whether those from the UK are visiting the EU or vice versa. While there remains a fair consistency on what individuals can do throughout the EU as visitors – and the TCA helps with this – immigration remains individual to each jurisdiction and this remains a complex area.  Please read more here.

We are also hosting a webinar on 16 March 2021 where our specialist team in the UK, Belgium, Germany and Spain will be exploring further the new rules and options for employers on business travel and short-term work across jurisdictions.  Please contact your usual Osborne Clarke contact to register your interest in this event.

Right to work checks: preventing illegal working and avoiding potential discrimination

One of the most common queries we are seeing from clients relates to the current position on how to undertake proper right-to-work verification for EU nationals.  This is not helped by the apparent contradiction between regulations to prevent illegal working, which apply now that freedom of movement has ended, and protections against discrimination. This is particularly acute at the moment, with the EU settlement scheme still open until the end of June 2021. For example, an EU national recruited in February 2021 may not have evidence of lawful residence but insisting on evidence may constitute discrimination. We look here at the latest position and provide guidance on the steps to take to mitigate risk.

As the Home Office move towards a more digitised system – all visas are due to be digital by the end of 2024 – it will also be important  to get to grips with conducting appropriate right-to-work checks using this online procedure. This guide explains how to do this properly to ensure you remain compliant.

To receive specific updates on the latest immigration issues both in the UK and across our international network, please contact our Head of Immigration, Gavin Jones or your usual Osborne Clarke contact.