Before coming to power Labour committed to ending "fire and rehire" and promised to reform the law to provide effective remedies against abuse, as well as implementing a "strengthened code of practice". Now that it's in government and has published the Employment Rights Bill (the Bill) we know a bit more about its proposals.
So, what's the aim of the government's reforms? In its 'Fire and rehire' Factsheet the government states that it "wants to end unscrupulous fire and rehire tactics that leave working people at the mercy of bullying threats". While it recognises the importance of businesses being able to restructure to remain viable "when there is genuinely no alternative" it states that this must be based on a proper process.
What's the current position?
Changes to terms and conditions of employment can be made following a fair consultation process which either leads to employees agreeing to the change or, where agreement cannot be reached, and the employer has a sound business case for making the changes, by dismissal and re-engagement on the new terms and conditions.
As of 18 July 2024, employers should also follow the statutory Code of Practice on Dismissal and Re-engagement (the Code).
There is no stand-alone claim for breach of the Code's provisions, but it must be taken into account by employment tribunals in relevant cases including unfair dismissal. Towards the end of October 2024, a draft Order was published which contains the power for employment tribunals to apply an uplift or reduction in compensation of up to 25% in collective consultation claims where a party fails to follow the Code. It is due to come into force on 20 January 2025.
The Code provides that "fire and rehire" should only be used as a last resort and that alternatives should be explored by employers. It introduces a requirement to consult for as long as reasonably practicable, states that employers should contact Acas at an early stage before they raise "fire and rehire" with the workforce, and points out that threats of dismissal should not be used to coerce employees into signing new terms and conditions.
What does the Employment Rights Bill say?
The Bill will change the law so that a dismissal is automatically unfair (with no qualifying service needed) if the reason or principal reason is:
- the employer sought to vary the employee's contract of employment and the employee did not agree to the variation; or
- to enable the employer to employ another person, or re-engage the employee, under a varied contract of employment to carry out substantially the same duties as the employee carried out before being dismissed.
There is an exception to this if:
- the employer can show that the reason for the variation was to eliminate, prevent or significantly reduce, or significantly mitigate the effect of any financial difficulties which at the time of the dismissal were affecting (or were likely in the immediate future to affect) the employer's ability to carry on the business as a going concern or otherwise to carry on the activities constituting the business; and
- in all the circumstances the employer could not reasonably have avoided the need to make the variation.
If the exception applies then the dismissal will not be automatically unfair, but the employment tribunal will consider if the dismissal was fair in the circumstances. In doing this, it will consider mandatory factors including whether the employer consulted with the employee and a trade union (if one is recognised) or other employee representatives, and whether the employee was offered anything in return for agreeing to the variation,
What this means is that employers will not be able to change terms and conditions of employment based on a sound business reason for doing so. The employer will need to be in "financial difficulties". We think this will be construed very narrowly given the wording in the government's consultation paper on remedies for fire and rehire which comments that the changed law, "will ensure that employers can only use the practice of fire and rehire if they can demonstrate that they were facing financial difficulties that threatened their viability …e.g. it was the only way to prevent insolvency".
In our experience, it is rare that employers change terms and conditions of employment in circumstances akin to insolvency. What is clear is that the situations in which employers will be able to use fire and rehire will be significantly restricted in future.
Strengthening remedies
The government issued a 'Consultation on strengthening remedies against abuse of rules on collective redundancy and fire and rehire' which closes on 2 December. The consultation is canvassing views on whether interim relief should be available to an employee who makes a claim for unfair dismissal in a fire and rehire scenario. As it points out it would "further disincentivise employers from using fire and rehire, unless it is genuinely a last resort".
Interim relief is designed to ensure the preservation of the status quo pending the hearing of an unfair dismissal complaint. It is available to employees who claim to have been dismissed for one of a number of inadmissible reasons. The claimant has to apply for interim relief no later than 7 days after dismissal and, if the employment tribunal determines the issue in their favour (the employee will have to show that it is "likely" that their unfair dismissal claim would succeed) it must make a continuation of contract order (assuming that the employer is not willing to reinstate or re-engage). This is an order for suspension on full pay, together with any other benefits derived from employment, and it will remain in force until the determination or settlement of the unfair dismissal complaint.
Practical points
Although the new law is unlikely to come in until 2026 (there is no set timeframe), there are a few general things to bear in mind:
- It will be important to try and gain consent to changes to terms and conditions.
- Consider offering favourable changes along with the less favourable changes as a way of making the whole package more acceptable.
- Do you have variation clauses in your existing contracts of employment? If so, these may be a way of imposing unilateral change.
- Ensure that all new contracts contain variation clauses.
- If you're thinking about varying terms and conditions, then do it soon before the new law comes in!
