to the employer. Organisations that have worked tirelessly to build a strong reputation in previous years, potentially risk undoing all this progress by utilising a controversial employment tactics like fi re and rehire. For over a year, the COVID-19 pandemic has
been the root cause of a lot of hardship for families across the UK and using fi re and rehire practice at this time is not an attractive option for employers to use unless the entire business is at risk. T is is particularly the case in view of the Government support schemes made during the pandemic, including the Coronavirus Job Retention Scheme.
Are there alternatives to fire and rehire? When it comes to implementing contractual changes, businesses should first explore other methods and approaches before considering fi re and rehire. Before proceeding, employers should check
if there’s a flexibility clause within their existing contracts of employment, as this might give them the right to make reasonable changes. However, caution should be applied in relying on this as some unilateral changes cannot be imposed, regardless of the clause’s inclusion particularly in relation to fundamental terms such as pay. T e fi re and rehire approach should only be
employed once an organisation has explored all alternatives and has decided that the contractual changes are absolutely necessary based on sound business reasons and only after seeking the agreement of the workforce for the changes through meaningful consultation. The potential for this course of action to
conditions of employees - If employers are hoping to integrate further fl exibility into contracts, e.g. to respond to consumer demand or to refl ect change in an area of the business.
What are the risks? Changing an employee’s terms of employment is never a straightforward task, and there are many potential hazards that employers must be aware of, especially if an employee perceives the changes as overwhelmingly negative. Businesses risk leaving themselves open to employment tribunal
claims if they terminate an employee’s contract and off er them a new one on reduced pay or benefi ts. Depending on their length of service, an employee could bring claims for unfair dismissal or constructive unfair dismissal, not to mention claims for a breach of contract or unlawful deduction of wages, depending on the new contractual terms. It is also worth noting that employers must adhere to all the relevant
statutory/contractual notice periods throughout the process, otherwise they risk facing claims of wrongful dismissal. T ere are also the non-legal risks such as reputational damage
ALL THINGS BUSINESS
negatively impact employee morale and company reputation cannot be overstated, so it is important for businesses to consider their options carefully before proceeding. In terms of the process, ACAS recommends following a fair dismissal procedure, with employees given suffi cient notice (statutory or contractual, whichever is longer) and off er employees the right to appeal.
Although fi re and rehire is legal, it is controversial
and often considered morally questionable. Employers must be convinced that taking such action, on balance, is worth it and should seek the support of experienced Employment Law advisers to help minimise the potential risks.
Alec Colson is a Partner and Head of Employment Law at Luton- headquartered law fi rm Taylor Walton. He specialises in Employment and Industrial Relations Law, advising commercial and public sector clients on all aspects of employment law.
Contact Taylor Walton on 01582 731161 or visit
www.taylorwalton.com 21
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