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The practice of ‘fire and rehire’ (i.e. dismissal of an employee and offering re-engagement on new, usually lesser, terms) as a way to facilitate a change to terms and conditions of employment has been under the spotlight in recent years. It is not a new strategy as a way of making changes to employment contracts, nor is it unlawful if handled properly, but the tactic has been subject to increased scrutiny in recent years as cases of misuse by some employers have hit the headlines.

In autumn 2021, legislation curbing dismissal and re-engagement was shelved by the government and replaced with a commitment for updated and more detailed Acas guidance. That guidance (which is not binding) focusses on the importance of thorough and constructive consultation with staff to explore all alternative options to terminating employment, describing fire and rehire as ‘a last resort’.

Fast forward a few months, and the government has announced that we can now also expect a new Statutory Code of Practice on fire and rehire intended to crackdown on the inappropriate use of the tactic, with increased punitive financial sanctions for non-compliance.

As always, the devil will be in the detail. The new Code is expected to set out the consultation process to be followed where there are proposed changes to terms and conditions, and to give practical steps for employers to follow. It is also expected that an additional 25% penalty (on top of the existing punitive sanctions) will be levied where an employer deploys fire and rehire tactics without first having made reasonable efforts to reach agreement through consultation, or where there is otherwise unreasonable non-compliance with the Code.
Continue Reading Fire & rehire clampdown: will a new Statutory Code of Practice help?

It is hard to avoid the media furore following the events at P&O Ferries last week, where approximately 800 staff were reportedly dismissed for redundancy, without notice and without prior consultation, before being replaced with cheaper staff. Leaving aside the specifics and merits of P&O’s actions (which are complicated by international and seafaring considerations), the

Next up in our Real Time Video Chat series, David Ashmore, Carl De Cicco and Alison Heaton explore the latest trends and issues regarding workplace vaccination policies in the UK. The group discusses the current statutory position on mandatory COVID-19 vaccinations, sick pay policies affecting the unvaccinated and what the term “fully vaccinated” means

Whether employers can require evidence of vaccination as a condition of employment or attendance in the workplace has been a hot topic in recent months, with many employers (having weighed up various legal obligations and risks) introducing a policy featuring vaccination status to some extent. Yet vaccination status is not stable and the dilemma now facing these employers in the UK is whether to revisit their policy requirements due to the rollout of booster jabs. Put simply, should employers with a vaccine policy now require vaccinated individuals to have the booster?

Full vaccination is currently seen as having completed the full course of an approved vaccine (i.e., being ‘double jabbed’, unless in receipt of an approved one-dose vaccine). At the moment there is no mention of the booster on the NHS Covid pass, receipt of the booster is not a pre-requisite for activities such as travel or attendance at venues, nor is it a requirement of deployment for care home staff (where there is a legal requirement for full vaccination, unless exempt, in England). On this basis, employers may be minded to maintain the same stance and ignore the boosters for any workplace policies too.

It will certainly be appealing to employers to maintain the status quo from a practical perspective. The administration of assessing whether staff eligible for a booster have had it is likely to be a particular challenge, both keeping track of who is eligible when (as although all UK adults have been offered the full course of an approved vaccine, the booster is only currently available to vulnerable groups and to those aged over 40, six months after their final jab), and what ‘evidence’ an individual has of a booster (as until this appears on the NHS Covid pass the individual will have little by way of proof that they have received it). Further, employers are likely to want to avoid having to update and communicate a change in policy so soon after introducing it, and dealing with any engagement issues or disputes arising from a change in approach.
Continue Reading What does the booster jab mean for vaccine policies in the UK?

Despite menopause being a natural part of the ageing process, there is a general lack of awareness of its symptoms and effects, often resulting in menopausal women* experiencing a lack of support, as well as discrimination and harassment. This blog looks at the legal issues, and what employers can and ought to be doing to create a supportive and empathetic workplace culture.

Some of these issues were highlighted in a recent Employment Appeal Tribunal (EAT) decision, Rooney v. Leicester City Council, which was handed down shortly ahead of World Menopause Day on 18 October 2021. This case acts as a timely reminder of the challenges that menopausal women face in the workplace and the fact that more can be done to raise and demonstrate understanding and awareness of what remains a taboo subject.

Mrs Rooney was a childcare social worker for Leicester City Council until she resigned from her post. She brought a number of claims against her employer, including a claim for disability discrimination, relying on menopause as her disability. She cited symptoms including insomnia, fatigue, light-headedness, confusion, stress, depression, anxiety, palpitations, memory loss, joint pain, migraines and hot flushes that left her physically and mentally unable to cope over a couple of years, and having to spend prolonged periods in bed. She received hormone replacement therapy and was under the care of a specialist menopause clinic.
Continue Reading Menopause in the workplace

With the lifting of COVID-19 legal restrictions in England on 19 July 2021, David Ashmore (Partner) and Alison Heaton (Knowledge Management Lawyer) from the Reed Smith employment team comment on the key issues/hot topics for employers.

What is changing on 19 July for employers?

The instruction to work from home if you can is being lifted from 19 July 2021. From this date it will be up to employers to decide whether employees should return to working in line with pre-COVID arrangements, retain the current work-from-home set-up, or move towards hybrid working.

Can an employer impose new arrangements from 19 July?

Although employers could require a return to a contractual place of work from 19 July, mandating an immediate change to current work-from-home arrangements is not recommended – not only does it run contrary to the government’s advice to implement any return to the workplace gradually, but is unlikely to be well-received by employees. Instead, employers are advised to prepare for a transition to new/previous arrangements over a period of weeks and months. Having a clear, robust and well-communicated health and safety and return-to-work plans, and adopting a flexible approach wherever possible, will allow for an easier adjustment. Where the employer wants to make changes to contractual arrangements, they will need the employee’s consent.

What if an employee does not want to return to the workplace – is that redundancy?

No. Where the employee is not willing to return to work, and alternative arrangements cannot be agreed, this will not be a redundancy situation (as redundancy only arises if the business closes, there is a closure of the workplace, or where there is a reduced need for employees).

How should employers deal with return-to-office anxiety?

Numerous circumstances may make some individuals reluctant to return to the workplace or previous working arrangements, certainly in the near term. Employers are encouraged to have an open dialogue with staff, taking time to understand each individual’s unique challenges and preferences, and to provide a supportive and flexible approach to find a mutually agreeable solution. They will need to be particularly vigilant in circumstances where the reluctance to return is linked to concerns about health and safety, and act reasonably when responding to concerns. Where it is not being offered, employers can perhaps expect to see a surge in flexible-working requests, and will need to treat these with care – where employees have successfully worked from home and/or flexibly during the pandemic, it may be harder to justify rejecting requests seeking to make that a more permanent arrangement.  
Continue Reading Preparing for a return to the workplace in the UK after 19 July 2021

Welcome to our monthly newsletter, with a summary of the latest news and developments in UK employment law. A PDF version of this newsletter can be accessed here.

This issue will provide recent case law updates, law reform and legislative developments, COVID-19 updates and any other news over recent weeks.

Case law updates

Collective redundancy consultation: The European Court of Justice (ECJ) has ruled on the reference period and threshold numbers required for the Collective Redundancies Directive, and has concluded that where the threshold number of dismissals is met at any point across the relevant reference period, then dismissals occurring both before and after that point are subject to collective consultation rules. This raises questions as to whether section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA), which applies the Directive in the UK (and which excludes the need to count employees whose proposed dismissal consultation has started) is compatible with the Directive. In the absence of amendments to TULRCA to clarify the situation, employers planning redundancies will need to have this case in mind, with an understanding of past redundancies as well as anticipated ones, when assessing whether the relevant thresholds for collective consultation are met. [UQ v. Marclean Technologies – NB: no English transcript is currently available]

Discrimination: The Court of Appeal has upheld the ‘cost plus’ basis for seeking to justify indirect discrimination, i.e., cost savings alone cannot be a legitimate aim and will rarely succeed as a defence, although it may be a factor where there is ‘something else’ (including where an employer is subject to financial constraints and is required to reduce its costs). Although not changing established principles, this case acts as a reminder that cost in itself should not be relied upon to rationalise potentially discriminatory practices. Incidentally the court also said that the phrase ‘cost plus’ should be avoided as inelegant. [Heskett v. Secretary of State for Justice]

Health and safety detriments: Following a judicial review, the High Court has held that the UK failed to properly implement the EU Health and Safety Framework Directive in the Employment Rights Act 1996 when only providing protection against detriment on health and safety grounds to employees and not also to workers. The Independent Workers’ Union of Great Britain, which initiated the proceedings, is calling for the government to urgently amend UK legislation to reflect this decision, which would significantly expand the scope of protection at a time when health and safety is particularly pertinent. [HC: IWUGB v. DWP]

Settlement agreement – COT3: Where arguments are being made to set aside a COT3 settlement due to misrepresentation, it is permissible for the tribunal to consider without prejudice communications. [Cole v. Elders Voice]

Summary termination: A firm was entitled to rely on a self-employed stockbroker’s repudiatory breach of contract to summarily terminate their relationship, notwithstanding the firm also having committed a repudiatory breach. [HC: Palmeri v. Charles Stanley & Co]

Tribunal hearings: An appeal against a decision to hold a merits hearing in person rather than remotely during the pandemic has been dismissed, reiterating the strong case management discretion held by judges. [Omooba v. Michael Garrett Associates]

Tribunal procedure – applications to amend pleadings: The Employment Appeals Tribunal has provided detailed guidance on the procedure to be followed when considering applications to amend, including how arguments in support of such an application should be approached, the matters to consider before such an application is made, and the importance of showing the consequences of the amendment being refused. This also reminds us that the tribunal has wide case management powers, and the appellant courts will seldom interfere. [Vaughan v. Modality Partnership]

Whistleblowing: The Court of Appeal has upheld the principle that multiple separate communications taken together could amount to a protected disclosure even if none of them, taken separately, would do so. Whether it is appropriate to take this approach is a matter of common sense and fact dependent, and it is not necessarily an error for the tribunal to fail to consider the composite approach. In the present case, the claimant failed to clarify which of his 37 communications should be grouped together, and the specific protected disclosure which arose from that combination. [Simpson v. Cantor Fitzgerald Europe]

Continue Reading UK Employment Law update – December 2020

Over recent weeks, the UK government has announced the first steps it is taking to get businesses up and running again in the wake of the COVID-19 pandemic. This publication highlights a number of key areas for UK employers to consider as they start to plan ahead to re-establish and maintain their businesses, while at the same time ensuring that they comply with their legal obligations towards the workforce. While the considerations are plentiful, this guidance focuses on health and safety, human resources, and workplace planning and management.

To view the publication, please click here. We would be delighted to answer any questions you may have. Please feel free to speak to any of the key contacts mentioned in the publication or to your usual Reed Smith contact.

Continue Reading Preparing for a post-COVID-19 return to the workplace: what do UK employers need to think about from a health and safety and HR perspective?

On 20 March 2020, the chancellor, Rishi Sunak, announced the Coronavirus Job Retention Scheme (the Scheme) as part of the UK government’s measures to help support businesses through the current COVID-19 pandemic. We have seen various iterations of guidance on the Scheme (on 26 March, 4 April, 9 April, 15 April and 17 April), and on 15 April 2020, a Treasury Direction was issued setting out the legal framework. Here is the updated position, as at 20 April 2020.

About the Scheme

What is the Coronavirus Job Retention Scheme? It is a temporary scheme announced by the UK government on 20 March 2020 as part of its package of measures to help support businesses through the current COVID-19 pandemic.

What does the Scheme do? The Scheme allows an employer to designate certain individuals who are paid wages via the Pay As You Earn (PAYE) system as ‘furloughed’, keeping them on payroll but not requiring them to work. The employer can then seek reimbursement of some of its labour costs from the government (see below).

How is the Scheme accessed? Reimbursement is via an HMRC portal which went live on 20 April 2020.

When does the Scheme start? It will be backdated to start from 1 March 2020 and will run for an initial period of four months, but may be extended. Employers can use the Scheme at any time while it is open.

Is the Scheme compulsory? It does not appear to be a compulsory scheme; employers are not obliged to make use of the Scheme, and workers will need to consent to be furloughed if it means a change to their terms and conditions (see ‘Does a worker have to consent to furlough?’ below).

Continue Reading Coronavirus Job Retention Scheme (updated position as at 20 April 2020)

On 20 March 2020, the chancellor, Rishi Sunak, announced the Coronavirus Job Retention Scheme (the Scheme) as part of the UK government’s measures to help support businesses through the current COVID-19 pandemic. We have seen various iterations of  guidance on the Scheme (on 26 March, 4 April, 9 April, and 15 April), and on 15 April 2020, a Treasury Direction was issued setting out the legal framework. Here is the updated position, as at 15 April 2020.

About the Scheme

What is the Coronavirus Job Retention Scheme? It is a temporary scheme announced by the UK government on 20 March 2020 as part of its package of measures to help support businesses through the current COVID-19 pandemic.

What does the Scheme do? The Scheme allows an employer to designate certain individuals who are paid wages via the Pay as You Earn (PAYE) system as ‘furloughed’, keeping them on payroll but not requiring them to work. The employer can then seek reimbursement of some of their labour costs from the government (see below).

How is the Scheme accessed? Reimbursement is via an HMRC portal which is due to be live by the end of April 2020.

When does the Scheme start? It will be backdated to start from 1 March 2020 and will run for an initial period of three months, but may be extended. Employers can use the Scheme at any time while it is open. As HMRC is having to build its information technology infrastructure from scratch to administer the Scheme, there may be a delay in funds being available. It is expected to be operational by the end of April.

Is the Scheme compulsory? It does not appear to be a compulsory scheme; employers are not obliged to make use of the Scheme, and workers will need to consent to be furloughed if it means a change to their terms and conditions (see ‘Does a worker have to consent to furlough?’ below).

Continue Reading Coronavirus Job Retention Scheme (updated position as at 15 April 2020)