A New Code of Practice for Fire and Re-hire
On 18 July 2024, a new code of practice on dismissal and re-engagement (fire and re-hire) came into effect outlining best practice for employers. Importantly if an employer breaches the code this isn’t a claim in itself however any breach will be taken into account by the Employment Tribunal in claims where relevant and the Employment Tribunal will deal with any breach in a similar way to any breach of the ACAS Code for disciplinary and grievance enabling the Employment Tribunal to uplift compensation by 25% where this is not followed.
The code references throughout that fire and re-hire should only be used as a last resort. Employers are required to take all reasonable steps to explore the alternatives before this and reach an agreed outcome with those involved.
The code sets out the provisions that employers should consider and follow before using fire and re hire, including:
- Considering all alternatives to dismissal.
- Engage in meaningful consultation for as long as reasonably possible, there is no minimum time requirement, and we consider this will be subjective to the circumstances.
- Employers are to contact ACAS for advice before raising the prospect of fire and re hire.
- Where possible employers and employees should agree changes and action where possible.
Where fire and re hire is considered necessary by employers, the code sets out that ACAS should be contacted for advice. We don’t yet know what ACAS will advise and whether they will simply reference the code to try and ensure that it is followed correctly. Something we do know however is that employers cannot and should not use fire and re hire as a threat and cannot raise the prospect unreasonably early to employees when consulting. However, the code also states that where employers are genuinely considering fire and re hire this should be communicated to employees as early as reasonably possible, these two concepts appear to conflict slightly which is why it will be important to ensure advice is sought and that the guide is followed so as to ensure employers do not breach the provisions of the code but also ensuring the correct language is used and that consultation happens in a timely manner. ACAS may offer guidance however each case is likely to be considered on its own circumstances so individual legal and HR advice is also likely to be necessary.
Whilst the new code is now in place with the recent change of Government further changes are likely to be afoot, Labour has given a strong opinion on fire and re hire practices and the likelihood is that they may be removed completely, it is therefore unclear how long the code will stay. We will of course keep you up to date with this and the anticipated employment law changes that may come in now Labour are in power.
If you have any queries regarding any of the points above and what they might mean for your business, or if you have a query on another area of employment law, our friendly and professional team are here to help. Please speak with one of our Employment Law team on 01246 555 111 or contact us directly:
Amy Hallam
Head of Employment
t: 0114 3496989
e: amy.hallam@brmlaw.co.uk
Ellie Leatherday
Associate
t: 01246 564002
e: ellie.leatherday@brmlaw.co.uk
Jade Taylor
Trainee Solicitor
t: 01246 560587
e: jade.taylor@brmlaw.co.uk
