For many, 2022 was deemed the ‘terrible 2’s’ – a war of the kind nobody ever thought would happen in modern day Europe, the cost-of-living crisis, a global recession, climate change and the death of the longest reigning monarch in British history.
Employment law has also seen many developments in 2022, and there is plenty on the horizon to look out for.
Over the course of the next few weeks, we will be sharing with you our thoughts on what is likely to make the headlines in 2023.
First up, is Fire and Rehire
We all heard the news when P & O Ferries got themselves into hot water when they sacked 800 workers without consultation via a pre-recorded Zoom meeting, because they couldn’t reach agreement with the Union. But they were not alone, as another big player, Tesco, also applied the fire and rehire tactic in relation to a contractual entitlement to enhanced pay at distribution centres. In this case the Union successfully applied to the High Court for an injunction to prevent Tesco from terminating the contracts, albeit this was subsequently overturned by the Court of Appeal.
In March 2022 the government announced that it would be introducing at new Statutory Code of Practice which will hopefully give clarification and some legal force to government expectations that employers should behave fairly and reasonably when seeking to change employees’ terms and conditions. However, at the time, when Paul Scully the Minister was asked when it would be introduced, he responded by stating “when parliament time allows”.
In June 2022 it was confirmed during a House of Lords parliamentary debate on fire and rehire, that there was ‘a commitment’ to bring forward the new Code.
We fully anticipate that the New Statutory Code will be approved in 2023. The implications for not following the Code will mean that in the event of a finding of unfair dismissal where fire and rehire tactics have been used, a Tribunal will be able to apply a 25% uplift to an award, as a punitive measure for not following the Code.
Even without a Statutory Code Employers are encouraged to engage and seek agreement with their workforce regarding any proposed variations to a contract of employment. A reasonable business rationale for requiring the variation, along with a full and proper consultation will go a long way to defending any claims brought – with ‘Fire and Rehire’ being the last resort.
If you would like to discuss Fire and Hire or any employment issues, please do get in touch.