UK Government Cracks Down on Fire and Rehire – but what does it mean for employers?

UK Government Cracks Down on Fire and Rehire - but what does it mean for employers?

On Tuesday 24th January 2023, the UK Government published the long-awaited draft of its statutory fire and rehire code of practice (the “Code”). The Department for Business, Energy and Industrial Strategy’s (BEIS) code – which is still subject to consultation for the next 12 weeks – has set out employers’ responsibilities when seeking to change the terms and conditions of an employee’s contract.  The government has stated that the code aims to avoid a repeat of the case of P&O Ferries’ in 2022, when it sacked 786 seafarers without due consultation – a move that prompted former transport secretary Grant Shapps to introduce a nine-point plan to address the issues. In this post, we look at UK Government Cracks Down on Fire and Rehire – but what does it mean for employers?

What are the implications of the code for employers?

Like other codes of practice in the employment world, it sets out minimum standards of behavior which employers are required to meet. You can have your own policies and procedures, but they must be in line with or in excess of the provisions of the code. Failure to comply with the code will be taken into account by an employment tribunal when considering any claims for unfair dismissal. 

The new code will require employers to take a business decision that considers the risk and impact of employees bringing a case against the employer for the change of contract. So when deciding whether to force the changes through with dismissal and re-engage (fire and rehire) strategy, the costs of an employment tribunal, including the cost of defending the case, any awards against them, any costs awarded against them, and the cost of time, stress and reputational damage must all be quantified in the business case to determine whether a fire and rehire approach still outweighs the cost of the changes required by the business which triggered the process in the first instance.

In summary, the proposed initial steps for employers include: 

  • Employer communicates that it wants to change the terms and conditions in employees’ contracts
  • The employer ensures compliance with specific legal information and consultation obligations beyond the scope of the code
  • Employees, or representatives of employees, make clear that they are not prepared to accept the changes
  • Employer re-examines its plans for changes to employment contracts in light of feedback from the consultation
  • The employer considers what information it could share with employees or their representatives, which might help reach a consensus
  • Employer consults with employees or representatives

How can fire and rehire be avoided?

Redundancy

An employer may seek to make roles redundant and follow a genuine, robust redundancy process giving employees the opportunity to apply for suitable alternative employment within the business if those roles exist. If the roles don’t exist then the employees may be made redundant and paid redundancy pay in line with legislation.

Changes for new employees

In some cases, it may be possible to bring new employees into a business on different terms and conditions to those the existing employees are on.

How can we help?

The code applies to all businesses, regardless of the number of employees you have within the business.

We hope that you found this post on ‘UK Government Cracks Down on Fire and Rehire – but what does it mean for employers?’ useful. Should you wish to discuss employee dismissal or any other employment law-related matters with our experts, please do not hesitate to contact us here.

What is the law when it comes to paid study leave?

What is the law when it comes to paid study leave? Are employees entitled to be paid for time off for training

Are employees entitled to be paid for time off for training agreed under the right to make a request in relation to study or training? Here, we explore what is the law when it comes to paid study leave?

Employees are an organisation’s most valuable assets and therefore it is important to invest in them through training and development so that they continue to build on their skills and also have the support and knowledge to carry out their roles effectively. It is therefore advisable for Employers to have a process in order that employees can request training or study.

What are the Employee’s responsibilities?

For a request in relation to study or training to be valid, it must be in writing (email is acceptable) and must stipulate:

  • that it is an application to make a statutory request in relation to study or training;
  • The date of the training;
  • Whether or not the employee has made a previous application in relation to study or training, and if so when and how the last application was submitted;
  • the subject matter of the proposed study or training;
  • where and when the proposed study or training would take place;
  • who (if anyone) would provide or supervise the study or training;
  • what qualification (if any) the study or training would lead to; and
  • how the employee thinks the proposed study or training would improve his or her effectiveness in the business and the performance of the business.

If, following a valid request in relation to study or training, the employer thinks that it needs additional information before it gives proper consideration to the request, it can ask the employee to provide further information.
Where the employer agrees to an employee’s request, the employee must inform the employer if he or she subsequently fails either to start or complete the agreed study or training or decides to undertake a programme of study or training that differs from what was agreed.

Employers are required to consider only one valid request from an employee in any 12-month period. To ensure that employees don’t leave so soon after obtaining their qualification, employers need to ensure that their policies are watertight so they may be able to claim back any payments made to the employee should they leave after a specific period of time following gaining their qualification(s)! They may only do this if it’s in writing and agreed with the employee.

If you have any questions about implementing a study or training policy or have a HR/employment query, please contact one of our solicitors on 0207 903 6888 or click here.

What is the new proposed anti-strike bill and what does it mean for employers?

the new proposed anti-strike bill and what does it mean for employers?

The UK Government has announced plans for a Parliamentary bill. It says it will ensure vital public services maintain a “basic function” during industrial action.  But what is the new proposed anti-strike bill and what does it mean for employers?

The bill, which has been dubbed the anti-strike law, is due to go through Parliament in the coming weeks.  If passed, the bill will impact six key public services and see trade unions bound to follow the legislation. Those who do not comply would be at risk of the employer bringing an injunction to prevent the strike from taking place, or seeking damages after the event if strikers and unions do not stick to their obligations.

What is the purpose of the anti-strike bill?

The bill plans to set minimum service levels for fire, ambulance, and rail services, following a consultation which is expected in the coming weeks. For the other sectors specified in the Bill – comprising other health services, other transport services, education, nuclear decommissioning and waste management, and border security – the Government expects to continue to reach voluntary agreements. However, minimum service levels could still be imposed as a fall-back option. 

The Bill is wider in scope than its predecessor, the Transport Strikes (Minimum Service Levels) Bill, which was introduced in the House of Commons in October 2022 and which has now been abandoned. In addition, rather than providing the statutory underpinning for enforceable voluntary agreements, the new Bill would confer powers on the Secretary of State to impose them without agreement.

As currently drafted, the whole of the Bill would become law the day it receives Royal Assent. In addition, it enables minimum service levels to be imposed even if the industrial action ballot took place before the Bill became law, or the necessary regulations were not made until after the notice of strike action was given to the employer.

Who is the bill applicable to?

The Bill would apply to the whole of Great Britain, but not Northern Ireland. Last week’s press release explains that the Government is engaging with the devolved administrations “throughout this process”.

Will there be opposition?

There is likely to be considerable political and other opposition to the Bill. Even assuming a smooth passage through Parliament, it seems unlikely that the new legislation will become law before the current round of disputes is over.


We hope you have found this post ‘what is the new proposed anti-strike bill and what does it mean for employers?’ useful.  Should you have any questions, please contact a member of our Employment Law team here.

The Redundancy Consultation Period

the redundancy consultation period.

With the UK economy facing significant economic challenges, it’s no surprise that an ACAS study found that nearly 1 in 5 employers are expecting to make redundancies over the next year. And whether or not redundancies are on the horizon for your SME, it’s important to know the law. That’s why this post looks into the length of the redundancy consultation period for UK employees and the redundancy notice period. Here, we discuss the redundancy consultation period.

What is a redundancy consultation period?

A redundancy consultation period is the time allocated for team conversations and meetings before formally agreeing to the redundancies. It is important to note that the redundancy consultation period is part of a larger redundancy process.

Within this time frame it’s important for you and your team to discuss:

  • Who’s likely to be affected
  • What redundancies you need to make
  • Why you need to make them
  • How you’re going to choose staff for redundancy

Important things to know for redundancy-consultation periods

If you’re making more than 20 people redundant within a 90-day period, then you have a statutory duty to hold collective consultations with your staff.

Even though there currently aren’t any set rules for teams below 20, it’s wise to hold consultations and understand your people. 

It’s important to speak to your team. Communicating during the redundancy-consultation period is important because:

1. Everyone deserves to know where they stand. 

2. If things do turn sour, you could risk appearing unfair or discriminatory in front of an employment tribunal. For example, if a claimant can prove you failed to consult them during a period before their redundancy, you’re then at risk for a hefty tribunal fine.  

It’s typical best practice to hold a collective consultation followed by individual meetings with affected staff.

How long is a redundancy consultation period?

For 20-99 redundancies

If a company needs to make 20 to 99 employees redundant, the employer must allow for a minimum 30-day consultation period.

For 100+ redundancies

For 100 redundancies or more, this jumps to 45 days prior to dismissal.

For less than 20 redundancies

If you’re a small business looking to make less than 20 people redundant, there’s no minimum time for a consultation. However, the law says it must be considered “meaningful” or the redundancy could be considered unfair.

20+ redundancies – important info

As well as adhering to the minimum periods, you’ll need to notify the Redundancy Payments Service before any consultation starts.

You’ll also need to consult with trade union reps, or elected employee representatives if your staff don’t belong to a trade union. 

The redundancy notice period: what you need to do

Once a consultation has taken place, you’ll need to provide redundancy notice. The length of the redundancy notice period depends on how long someone has worked for the company.

  • 1 month and 2 years = 1 week’s redundancy notice
  • Between 2 years and 12 years = 1 week’s redundancy notice for every year they have worked for you
  • More than 12 years: 12 weeks’ redundancy notice

What key actions do employers need undertake?

It is important that employers remember to provide termination notices, in which, they’ll need to clearly state the agreed leaving date and provide redundancy notice once the consultation period is complete.

The periods outlined above are the statutory minimum an employer must give to be compliant by law, so that they can increase the redundancy notice period should they wish.

They’ll also need to pay those you are making redundant throughout their notice period. This can be offered as pay in lieu of notice if this is included in their terms of employment.

How can we help?

We hope that you have found this post on The Redundancy Consultation Period useful. As experts in redundancy and restructuring, we can provide specialist employment law advice to ensure that any changes you wish to make to your business are done in the most efficient and effective way possible. Contact us here to learn more.

The Impact of the Minimum Wage Increase

Impact of NLW increase

In the Autumn Statement, Jeremy Hunt announced that the national living wage for those aged 23 and over would increase to £10.42 from April 2023. Here, we explore the impact of the minimum wage increase.

What are the new rates?

From 1 April 2023, the National Living Wage (NLW) (for those aged 23 or over) and the National Minimum Wage (NMW) (for those of at least school-leaving age) shall be:

  • £10.42 for those aged 23 and over
  • £9.18 for those aged 21 to 22
  • £7.49 for those aged 18 to 20
  • £5.21 for those under 18 and apprentices

Apprentices are entitled to the apprentice rate if they are under 19 or aged 19 or over and in the first year of their apprenticeship. Should either of these not apply the apprentice is entitled to the minimum wage for their age.

What are the impacts of the new rates?

The annual earnings of a full-time worker on NLW shall increase by approximately 9.7%, over £1,600. It is expected that over two million workers shall benefit from this increase.

However, there are concerns that the increase is not in line with the current rate of inflation which is currently at 11.1%. The Living Wage Foundation has also highlighted that the rates will still be lower than the voluntary real living wage of £11.95 in London and £10.90 outside the capital. It may be that in order to survive with the current inflation rate, employees request their salary be increased to the real living wage in order to cope with the current cost of living crises.

While those on low salaries will welcome the increase, there are many industries that have taken, or are threatening strike action as those who are on not on minimum wage are still fighting for an increase in salary to reflect inflation. The strike must be related to a dispute between workers and their employer to not be a breach of contract.

What proactive steps can companies take?

There is no doubt that the increase in NLW and NMW shall reduce business profits and with the increase in cost of living, many companies may find themselves concerned about the risk of insolvency. However, there are steps businesses can take to protect themselves.

In most cases, benefits employees receive and premiums they pay, do not count towards NMW. Therefore, companies that are concerned about how they will be able to afford the increase may want to review employee benefits and premiums. However, doing so may involve a change to employees’ contractual terms and therefore employers should start the process, in order to be prepared in time for April.

Unfortunately, in some situations, a genuine redundancy situation may arise where a company cannot afford to maintain the wage roll. If a company is dealing with staff redundancies, it is imperative that the redundancy strategy is correct and that employees are treated fairly, as well as comply with the legal requirements. Failure to do so may result in an Employment Tribunal claim. 

While most companies survive on customer loyalty, it may be that in order to navigate the increased expenses, businesses may need to pass on the increase to their customers’ costs.

How we can assist

If you would like to speak with an expert employment lawyer to discuss any concerns managing the increase in the NLW and NMW, please contact us via email at contact@davenportsolicitors.com or telephone on 02079036888.

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How do rail strikes impact employers?

How do rail strikes impact employers

The UK has been impacted heavily by national rail strikes over recent months, due to ongoing disputes over pay.  But how do rail strikes impact employers?  What happens if an employee can’t make it in to work because of a strike?

Employers should be prepared for the strikes

Employers should try and accommodate all reasonable requests by employees who are making their best efforts to come into work during strikes, including allowing staff to come in late or leave early where necessary.

Employers should not unreasonably discipline employees who are genuinely unable to make it to work or who are late. There are no legal requirements about what businesses must do but thinking outside the box will be a key consideration for critical staff in certain industries.

Make travel disruptions part of your company policy

Businesses should have a policy for dealing with travel disruptions. In a policy, you can make it clear that employees will not be paid if they are not able to get to work and the steps that employees are required to take when faced with travel disruption. This will also reduce the risk of disputes arising between employers and employees.

Companies should speak with staff and agree on alternative arrangements. Where this isn’t possible, there is the option of enforcing annual leave – with correct notice – or asking staff to use accrued time off in lieu.

Legally, where do employees stand if they can’t make into work because of the strikes?

While most employers will acknowledge the difficulties a strike will cause employees, some may bring disciplinary action against their staff unable to make it into work. However,  such action could be deemed unreasonable as it is beyond the control of their employees and therefore not a misconduct issue.

If an employee can’t get into work because of the rail strikes, but the workplace is open and work is available, then technically they have no right to be paid for the day. A refusal to attend work in theory could lead to disciplinary action; however, if there is a genuine reason why it is difficult to travel to work, this is an unlikely outcome. It is, generally, an employee’s responsibility to get to and from work and so, if this is not possible, the employer is entitled to regard such absence as unauthorised. An exception to this might be where the employer provides transport, for example, a bus service, and this is canceled.

To find out more about how rail strikes impact employers, contact a member of our employment law team here.

The Retained EU Law (Revocation and Reform) Bill 2022

The-Retained

In September 2022, the Department for Business, Energy & Industry Strategy published the Retained EU Law (Revocation and Reform) Bill 2022. The Bill seeks to provide a domestic law basis for amending or revoking over 2,400 well-established retained EU laws that operate across 21 sectors of the UK economy, by 31 December 2023.

What does the bill entail?

The bill is concerned with the issue of ‘retained EU law’ – the body of EU law which was ‘preserved in the UK statute book when the UK left the EU. The government has identified over 2,400 pieces of retained EU law cutting across multiple sectors and policy areas. This covers both retained direct EU legislation, including EU regulations that have been converted into UK law, and EU-derived domestic legislation, including UK laws implementing EU directives that have been ‘saved’ post-Brexit. 

The new bill intends to give the government wide-ranging powers to repeal and revise these laws. The bill includes a clause that by default revokes all EU-derived subordinate legislation and retained direct EU legislation on 31 December 2023, unless an exemption is made. This includes all legislation made under section 2(2) of the 1972 European Communities Act and other legislation made with the purpose of implementing EU rights and obligations. 

The bill also gives ministers sweeping new powers to restate, revoke, replace, and update retained EU law. This means that ministers have the freedom to make major changes to EU-derived employment protections without the need for an act of parliament. Instead, they can use statutory instruments, which involve considerably less parliamentary scrutiny.

The Government will, however, be constrained by the “Level Playing Field” provisions in the UK-EU trade agreement, particularly in the field of employment rights, social protection, and environmental law. These provisions are there to ensure that the UK level of legislative protection in these fields is not reduced below the levels existing at the end of the Transition Period (31 December 2020) if that would affect trade or investment between the UK and EU.

Businesses should expect and prepare for potential new divergences between the nations of the United Kingdom. 

Should you have any questions about this post, please contact a member of our employment law team here. 

Menopause in the workplace and employment law

Menopause and employment law

The Woman and Equalities Committee (WEC) published its Menopause and the Workplace report in July, where it recommended that the Government add menopause as the 10th protected characteristic to the Equality Act 2010 in order to stop ‘highly skilled and experienced’ women from leaving the workforce. Here, we explore menopause in the workplace and employment law.

Menopause in the workplace – how are women supported?

Menopause, which typically affects women between the ages of 45 and 55, causes a range of physical and/or psychological symptoms such as hot flushes, sleep disruption, headaches, fatigue, depression, anxiety, and poor concentration. Considering menopausal symptoms can last for up to 10 years, it is vital sufferers are supported in the workplace.

With the retirement age now at 68, today’s aging workforce means more employees are working through menopause than ever before. According to the Government Report on Menopause, menopausal women are the fastest-growing workforce demographic in the UK. Because of this, there have been calls for employers and the government to recognise the challenges faced by employees experiencing menopause.

Currently, there is no legislation specifically relating to menopause. However, under the Equality Act 2010, menopause discrimination may be covered under three protected characteristics: age, sex, and disability discrimination. Furthermore, the Health and Safety at Work Act 1974 provides for safe working conditions. This protection can extend to staff experiencing menopause whose health concerns are not being appropriately managed by their employer.

While menopause can potentially be seen as a disability under section 6 of the Equality Act due to its long-term and detrimental impact on a person’s capacity to undertake day-to-day activities, it is more likely that tribunal claims will be made for sex discrimination. These claims are often specifically concerned with the unfair treatment of a person due to their gender and the health issues related to that gender.

How can employers support employees going through the menopause?

Taking steps to support employees can help protect employees from potential claims in an employment tribunal. Acas suggests several strategies that employers may want to follow to facilitate a supportive working environment for employees experiencing menopause.

Awareness

By educating the workplace through training sessions and events, employees will understand the symptoms and effects of menopause. This will enable managers to deal with menopause issues sensitively and fairly. In turn, employees may gain more confidence to talk to their managers about these issues.

Menopause champions

Having a dedicated menopause champion in the workplace as a point of contact for those affected by menopause may put these individuals at ease if they are not comfortable talking to their managers at first instance.

Menopause policy

Developing and implementing a menopause policy can reassure employees that there is support available by providing an overview of reasonable workplace adjustments that could be made. A policy will also encourage open communication between employees and managers.

Risk assessments

As explained above, employers are responsible for the health and safety of all staff under the Health and Safety at Work Act 1974. Employers must carry out regular risk assessments to ensure that their employees’ working environments remain safe and healthy. For staff experiencing menopausal symptoms, this could include the temperature and ventilation of the workplace.

If you’d like to discuss this in further detail or request advice when it comes to employment law, please do not hesitate to contact a member of our team here.

Another bank holiday – Employers options

Another bank holiday – Employers options

We have another bank holiday on 19 September 2022 and employers will be wondering where they stand in terms of allowing employees/workers to take the day off. It is important to note that they do not automatically have the right to take the day off work. Employers need to look at how they approach the additional bank holiday. Here, we look at Another bank holiday – Employers options.

Almost all workers are legally entitled to 5.6 weeks’ paid holiday a year (known as statutory leave entitlement or annual leave).

An employer can include bank holidays as part of statutory annual leave. However, bank or public holidays do not have to be given as paid leave.

When deciding whether to allow the worker time off for the bank holiday on 19 September 2022, the first thing employers will need to do is check the contract of employment.

If the contract of employment states that employees are entitled to 8 bank holidays, then they do not have allow them the day off as a bank holiday on 19 September 2022.

There is no statutory right to extra pay, for example time and a half or double time, when an employee works on a bank holiday. Any right to extra pay depends on the terms of the employee’s contract of employment.

Organisations may decide to close their offices on 19 September 2022. If they do, then they may require employees to take the day off using their annual entitlement. They must give them at least 2 days’ notice if they want their employees to use their annual leave entitlement to take the day off. Give more notice if possible.

Alternatively, some employers may wish to consider allowing employees to take unpaid leave, if they decide not to close their offices on 19 September 2022 but their employees do not want to work on 19 September 2022.

Of course, even if the employer is not contractually obliged to grant the extra day as leave, it may choose to do so as a goodwill gesture to employees, especially given the historical significance of the event.

However, if the employment contract does not state the number of bank holidays i.e. “you will be entitled to bank holidays and 20 days” then employers are likely to have to allow the employee a paid day off on 19 September 2022.

For more information on dealing with annual entitlement/public holidays or drafting/reviewing your employment contracts contact us on 0207 903 6889 or email

Another bank holiday – Employers options
Another bank holiday – Employers options

Political Opinions and unfair dismissal

The right to bring claims against an employer for unfair dismissal usually requires an employee to have at least two years of continuous service. There are however some statutory exceptions to this rule as set out in The Employment Rights Act 1996. These exceptions are usually deemed as automatic unfair dismissal.   A person does not have to have two years of service to bring a claim if they are able to show for example that they were dismissed because of reasons connected to childbirth or pregnancy, health and safety or whistleblowing amongst other things. Here, we look at political opinions and unfair dismissal.

A further exception is also included in regards to dismissals which relate to political opinions or affiliations. In such circumstances, an employee with less than 2 years’ service would therefore potentially be allowed to proceed with a normal unfair dismissal claim. This will not however make the dismissal automatically unfair.

Where dismissals relate to political opinions, employees with less than two years’ service may also usually rely on the rights conferred by equality legislation. The Equality Act 2010 provides that individuals may not be discriminated against on the grounds of their religion or belief, with this protected characteristic well established as including political and philosophical beliefs which meet the legal tests. Where an employee with less than two years’ service is therefore dismissed for their political beliefs they may usually pursue a discrimination claim.

The recent case of Scottish Federation of Housing Associations v Jones [2022] illustrates the approach the Tribunal will take when considering when and how to apply the “political opinions or affiliation” exception to the qualifying period for unfair dismissals.

In this case Ms. Jones was employed by the Scottish Federation of Housing Associations as its Head of Membership and Policy. Her contract contained a “political activity” clause which prevented her from taking a formal political role but which did not however prohibit her from belonging to a political party.

Around 6 months into her employment, Ms. Jones informed her employer that she wished to stand as a candidate for Scottish Labour at the next General Election. Her employer refused this request as it would have been deemed a formal political role. Ms. Jones subsequently withdrew her candidature. Following this Ms. Jones was dismissed from her employment. Her employer cited a number of reasons none of which included any reference to her political aspirations, beliefs or affiliations. Ms. Jones did not accept the reasons cited and instead sought to rely on the exception in
s.108 (4) ERA 1996 to allow her to pursue an unfair dismissal claim on the basis that she was dismissed for having sought permission to stand as a Parliamentary candidate; despite not having the requisite length of service. She also lodged a discrimination claim on the grounds of belief- the belief element being formulated as a philosophical belief  that “those with the relevant skills, ability and passion should participate in the democratic process”. In doing so claimed that she had been
dismissed by the employer for seeking to exercise that belief by wanting to stand as a Parliamentary candidate.

The matter was considered by an Employment Tribunal and eventually went to the EAT on appeal. The EAT took a very narrow approach to the interpretation of the exception In s.108(4) ERA.  The original Tribunal found that Ms. Jones, despite not having two years’ service could rely on the exception in s.108(4) in order to pursue an unfair dismissal claim, because she alleged, she was dismissed for having sought to stand as a Parliamentary Candidate. The EAT however found that this interpretation was incorrect. It said that the wording of the statute was unequivocal; it only applied
to dismissals which related to an employee having held a particular belief or affiliated with a particular political party.

On the facts, the employer’s refusal to grant permission for Ms. Jones to take a formal role, given that there was already a political neutrality clause in her contract, did not amount to having dismissed her in her regard to either her political opinions or affiliations. She was therefore barred from proceeding with an unfair dismissal claim.

The EAT did allow her discrimination complaint to proceed however, finding that her philosophical belief was protected under the Equality legislation.

The case is a useful illustration of the Tribunal’s narrow application of the exception contained in s.108 (4) ERA. Employees who seek to rely on the exception must usually have clear evidence and reason then that the dismissal was related to their political opinions or beliefs. Related ancillary reasons will not be sufficient. Importantly too, for employers, the case is an important reminder of the protection that the Equality Act affords all employees, regardless of the length of service.

For further advice on dismissing an employee fairly or defending an Employment Tribunal claim please contact us on 02079036889 or email contact@davenportsolicitors.com.