Fire and Rehire

This is a provision in the new employment bill which is has had a fair amount of publicity. The temptation is to think that this is only something that which is likely to impact on large employers, but the reality is that this may have repercussions across the board.

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Because of the antics with P&O Ferries in 2022 when crew were told to accept new terms or be dismissed, the government has introduced provisions in the Employment Bill banning the practice in almost all cases. Any dismissal for these reasons will be automatically unfair. ?With no qualifying waiting period for claims once the bill is in force (prob. October 2026) it would be a brave employer who attempted a hire and rehire.

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What about TUPE?

In reality you will be able to harmonise terms and conditions upwards as no employee is likely to refuse a pay rise upwards but the real difficulty comes with conditions of service.

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If you tender for an outsourced contract such as cleaning or catering, you must drill deep to find out the benefits being included by the current service provider.

Examples

PHI or death in service.? Large employers will commonly offer this as a benefit and will have negotiated insurance that is “Previous risks accepted”. That will mean the joiners are automatically accepted. You come along as an ambitions business and pitch for the contract.? If you cannot continue to continue cover for existing employer provide employee benefits, then this will be a termination of employment and automatically unfair

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A firm of accountants might be flattered to take in a distinct department of a client and that new work could amount to a Tupe transfer. Similarly solicitors taking on outsourced legal work will need to ask a lot of questions before taking on the work.? A large financial institution will typically have full range of employee benefits which cannot be easily replicated.? An employee transferring across but suffering e terminal illness will be distraught to find their sickness and death in services benefits have fallen by the wayside.

A deep drill due diligence exercise is wise in any TUPE but knowing that the last resort of Hire and Rehire is not an option available except in extreme financial pressure where the business would fold if it cannot embark on contract changes means that it is essential.

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Tony Bertin is an employment lawyer with Woodstock Legal Services