Last reviewed 31 March 2022
On 29 March 2022, the Government announced plans to introduce a new Statutory Code of Practice for employers using fire and rehire tactics. A parliamentary vote was held during the week prior on banning fire-rehire practices completely, driven by the Labour Party in response to the widely publicised large-scale redundancies of P&O Ferries staff. However, the vote lacked support from the Conservative Party and failed by 251 (against banning) to 188 (for banning), so new laws will not be implemented at this stage to prohibit the use of such tactics. However, it is hoped the new Code will act as a deterrent for employers acting unreasonably and safeguard workers’ rights.
The use of fire-rehire practices has been widely criticised as a means of renegotiating contractual terms and conditions, with many arguing that the pandemic was used as a smokescreen to diminish workers’ terms and conditions in an unacceptable way. As a result, in November 2021, ACAS published new guidance at the request of the Government, which highlighted that employers should only consider dismissing and offering to rehire someone on new terms as a last resort and only where changes are critical and voluntary agreement isn’t possible. Before doing so, they must have made all reasonable attempts to reach an agreement through full consultation with affected staff members and their representatives in a genuine and meaningful way.
The Department of Business, Energy and Industrial Strategy (BEIS) is now going one step further to introduce a Statutory Code of Practice on dismissal and re-engagement, under s.203 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA). The Code will include practical steps that employers should follow in these situations, such as the minimum consultation period and number of meetings they should hold; the information to communicate with employees and their representatives; the notice requirements for meetings and before introducing changes; and the grounds which will be considered as reasonable for implementing changes in the first place.
When undertaking such processes, it’s important to adhere to fundamental principles, including:
ensuring there is a robust business case in place which outlines the changes and explains why they are necessary
considering the impact this may have on affected employees and analyse whether there are any other ways to reach the same goal
evaluating how many employees will be affected by the change and adhering to collective consultation rules and any processes outlined in trade union agreements
reviewing alternative approaches by looking at what compromises employees have put forward and evaluating whether these have been given adequate consideration
providing clear and reasonable grounds for rejecting any alternatives based on strong, factual evidence
showing empathy, compassion and understanding throughout the process, to ensure employees feel valued and supported
treating all employees equally and consistently, and not making changes based on a protected characteristic an employee holds (eg disability, pregnancy, race, etc).
Changing terms and conditions can be a lengthy process, but employers who take the time to do so properly will reap the rewards in the long run. Effective consultation can help maintain good workplace relations, as it allows staff to understand the reasons behind proposed changes and provides them with an opportunity to give their views. This can help to build trust and find a solution that works for everyone. Tensions can arise if employees feel that they have not had the opportunity to inform decisions around proposals or do not support the changes. This can result in staff feeling less committed, impact an organisation's performance and increase the risk of tribunal claims or industrial action.
When claims are raised to the employment tribunal, the judge will refer to statutory codes when deciding the level of award an employee is entitled to. The most common statutory code is, arguably, the ACAS Code of Practice on Disciplinary and Grievance Procedures. However, the new fire-rehire Code will lay new consideration for employment tribunals to analyse. This means an employer may face paying out up to 25% more in compensation for not following the process set out in the Code. It is hoped this will act as a further deterrent to employers to prevent them from abusing the fire-rehire process and treating employees unfairly.
The Government will be consulting on the draft Code later this year and will bring it into force as soon as parliamentary time allows. For now, businesses can continue to utilise fire-rehire approaches where necessary, but it’s important they understand the need to properly consult with affected staff members and the risks to the organisation if they don’t. In coming months, tribunals will likely be stricter when evaluating fire-rehire situations and be less lenient when considering the process employers followed to enforce changes to contractual terms.