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Welcome back to our weekly blog! We’ve just come out of February half term here, and I actually escaped the kids and husband with a trip to Fuerteventura with my friend, she’s a teacher so when she asked if we could go away together my response was yes of course, but only if it’s adults only! Needless to say, she has two kids and 30 children in her class, so she was game.

I had a wonderful few days of sun, some very strong cocktails and even managed to finish a couple of books I’ve had on the go since Christmas… Now I am now back feeling refreshed (or I was until a couple of days back into the chaos of life has me wondering whether I even went away at all and looking into when I can book my next getaway!)

Anyway… onto the employment law update you’ve come here to read about!

There’s been a draft code of practice published by the government to deter dismissals and re-engagements of employees (more commonly referred to as the fire and rehire tactic).  This tactic is when an employer sacks their employees, and then offers them a new contract on less favourable terms, much like the well-publicised P&O Ferries saga.

The government have published this code because they say they are firmly against this tactic being used as a negotiation tool, and the new guidance has been published to make it clear how they expect employers to behave when using this.

The code will be used by courts and employment tribunals but there won’t be a standalone claim which can be brought by employee in this regard. What I really mean is that it will be used like the Acas code on disciplinary and grievances.  So, for example in any unfair dismissal claims which may be brought against an employer, where the employer should have been following the code, the tribunal will be able to increase any award it makes by up to 25%, if the employer has unreasonably failed to comply with the Code; or reduce any award by up to 25%, where it is the employee who has unreasonably failed to comply.

The idea behind the code of practice is that it will clarify how employers ought to be behaving when they’re trying to change employees’ terms and conditions. It’s hoped that the code will ensure employees are treated fairly and consulted properly. In terms of specifics,  it states within the draft code that the threat of dismissal should not be used as a negotiation tactic, and only should be proposed to employees when an employer is actually intending to dismiss them, and further, that this dismissal and reengagement option should only be used as a last resort.  The preferred option, as set out in the code (and actually as we recommend at Precept) is to try and get employees to agree to the proposed changes – but we do know that this isn’t always possible!

What difference this code actually makes is yet to be seen. What we do know is that unions have criticised the code saying that it lacks bite, and that it would not stop bad employers from still treating staff the same way. It could be said that protection in the form of legislation or standalone legal rights would have offered employees better protection, but this obviously needs to be balanced with employers being able to make changes where needed.  Especially in these uncertain economic times, this tactic may be genuinely needed by employers to save the business and jobs overall.

If the code is approved, it will be brought into effect this summer, so watch this space for any updates.  We will of course let you know as this progresses…