Employment Rights Bill: Ministers relax proposals on rehiring and firing in the wake of a fire.

Ministers are amending the Employment Rights Bill to give employers a little more flexibility.

The government’s original proposal to eliminate the practice of firing and rehiring has been nuanced in what can be considered an 11th hour intervention.

Originally, it was considered unfair for an employer to dismiss a worker for refusing to accept a change to their employment contract, or to allow them to be re-employed (or another employee) on varying terms for essentially the same job.

This will only be applicable if the employer wants to make “restricted variations”.

It is any change in an employee’s employment contract that affects their pension, working hours, shifts or time off. This will cover clauses which allow for such changes to be made without consent from the employee.

Amy Wren of Farrer & Co, a senior lawyer, wrote that this revised approach seemed to focus the strictest safeguards onto contractual changes which were most vulnerable to misuse and most likely to affect vulnerable workers. This change was expected to impact employers who wish to make such changes.

The amendment, which is expected to be passed by the government, will prevent dismissals from being automatically unfair, if the contract variation proposed does not have “restrictions”. Changes to the employee’s duties or place of employment are included. Darren Newman, an employment lawyer, wrote that dismissal due to refusal to accept a new workplace would no longer be unfair.

Changes in the Public Sector

The fire and rehire provision is being changed to specifically apply to organisations in the public sector. Newman said that, at present, the only exception from the rule that dismissal due to refusal to accept a limited variation is unfair was if the employer faced ‘financial difficulty’ which affected their ability to continue with business.

Since the Bill’s publication, it has been noted that local authorities and other public sector organizations are excluded. Financial difficulties may arise, but they do not cause them to cease operations or close down. The amendments will allow for an exception to apply when financial difficulties “affects the financial sustainability in carrying out the employer’s statutory duties”.

Luke Bowery is a partner at Burges Salmon in the UK employment team. He said that the changes “middle the impact of the original provisions for employers.” The proposed amendments will still offer employees a very high level of protection against this practice. However, employees’ ability to veto any contractual changes is curtailed.

He said: “The best approach for both employer and employee is to consult in order to reach an agreement on the changes needed to the contract. The government’s amendments offer employees significant protection against fire and rehire when employers want to change key elements of the employment contract, such as pay, pensions and hours of work. The tightened regime will apply to other types changes.”

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