Description

The government has responded to a consultation it held regarding the proposed changes being introduced by The Employment Rights Bill in relation to the practice of firing and rehiring and in relation to its proposal to lift the cap on the protective award if an employer is found to not have properly followed the collective redundancy consultation process.  Listen along for further details!

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Transcription

• Speaker #0

  Today in the Lefevre HR and Employment Law podcast, we're discussing the changes being introduced by the Employment Rights Bill in relation to the practice of firing and rehiring, whereby the government is proposing to make it automatically unfair to dismiss an employee who does not agree to proposed variations to their contract of employment in circumstances where the employer's intention is to dismiss them and offer re-engagement on the new terms should they not agree. The only circumstances in which it is proposed, it will not be automatically unfair to dismiss on this basis, is if the motivation behind the changes to contractual terms is to mitigate serious financial difficulties and the employer is able to show that the need to make the change was unavoidable. The policy paper accompanying the bill also set out commitments to lift the cap on the protective award if an employer is found to not have properly followed the collective redundancy consultation process. as well as considering the role of interim relief in protecting workers in these situations. Following a public consultation on these proposals, the government has published its consultation response. With regard to the increase to the protective award, it believes that increasing the maximum period of the protective award from 90 to 180 days is the most proportionate approach, as this will help ensure that employers will not be able to deliberately ignore their collective redundancy consultation obligations. and should never be in a position where it is financially advantageous to do so. Employment tribunals will continue to have discretion to vary the length of the protected period, as they consider just and equitable up to the maximum of 180 days, taking into account the seriousness of the employer's actions, as well as any mitigating factors. The government believes that this will provide an increased deterrent against cynical and deliberate breaches of the collective redundancy requirements, while also ensuring tribunals can continue to consider the circumstances of the breach when making awards. In addition, in response to feedback from the consultation, which suggested that some employers may need greater support to ensure understanding of and compliance with their collective redundancy obligations, the Government has committed to issuing further guidance for employers of all sizes. As to whether interim relief should be available to employees who bring claims for the protective award, and or for unfair dismissal on grounds of fire and rehire, the government has decided not to take these proposals forward on the basis that the implementation issues raised in relation to this relief, that is the short application deadline, would mean that this would not be an effective remedy to strengthen compliance or deliver additional benefits. The availability of interim relief would also cause increased pressure on tribunals, employers and employees when considered alongside the other changes proposed in this area. With both collective redundancy and fire and rehire law undergoing significant changes in the Employment Rights Bill, the Government has acknowledged that further consultation will be needed to review the impact and implementation of these changes before any additional remedies such as interim relief or injunctive relief should be considered. In addition, recent legislation introduced a potential uplift of up to 25% to a protective award in a collective redundancy scenario. where an employer has unreasonably failed to follow the code of practice on dismissal and re-engagement, where a tribunal finds it just and equitable to do so. This, in the government's view, combined with the increase to the protective award, is an effective remedy to increase compliance with collective consultation obligations. These amendments will now be brought forward to the Employment Rights Bill, and the promised guidance will be issued in due course. Further views on strengthening the collective redundancy framework will also be sought, along with views on updating the Code of Practice on Dismissal and Re-engagement to ensure that it reflects the changes which will be made by the Employment Rights Bill to the practice of fire and rehire. Look out for further episodes in this series to stay up to date on all things HR and employment law related.