Lord John Hendy speaks in the Fire and Rehire debate in the House of Lords

Employment and Trade Union Rights (Dismissal and Re-engagement) Bill debated on Friday 1 March 2024

8 Mar 2024| News

Lord John Hendy KC, chair of the Institute of Employment Rights (IER) spoke in the debate on fire and rehire (Lord Woodley’s Employment and Trade Union Rights (Dismissal and Re-engagement) Bill) in the House of Lords on the 1st of March 2024. Here’s what he said:

“My Lords, it is a pleasure to follow my noble friend Lady O’Grady. I too compliment my noble friend Lord Woodley on securing the Bill. I declare my trade union interests as in the register.

Fire and rehire is widespread, as my noble friends Lady O’Grady and Lord Woodley and the noble Lord, Lord Balfe, have demonstrated. It places workers in an awful dilemma: they must accept a cut to their standard of living or face unemployment. The anguish of that horrible choice needs little elaboration at a time when real wages have been stagnant since 2007.

The Office for National Statistics reports that median regular pay in November 2023 was as low as £27,588 per annum, which means that half the working population —16 million workers—earn less. Indeed, a quarter of the UK’s workers earn less than £16,068 per annum. No wonder the Joseph Rowntree Foundation, in its report UK Poverty 2024, estimates that 14.4 million people were in poverty in 2021-22 and nearly 3.8 million people experienced destitution,

“an extraordinary 148% increase over just five years”.

That is significant, because TUC research shows that fire and rehire is used predominantly against the lower paid, and disproportionally represented among the lower paid are, naturally, women, ethnic minorities and those with a disability.

The use of the tactic is not just bad for the workers on whom it is inflicted; it is bad for the economy. According to the ONS, the UK’s economy grew by 0.1% last year and has declined since. Reducing the spending power of workers shrinks the economy still further. That is a powerful reason to address this obnoxious practice.

Currently the tactic is lawful so long as the employer gives the employees the minimum notice of dismissal—contractual or statutory, whichever is the longer. The risk of a successful unfair dismissal claim is minimal for the employer that can show an economic need to reduce labour costs—what the legislation calls “some other substantial reason” for the dismissal. Even if that defence fails, the employer can argue that the offer of reduced terms was reasonable in the circumstances, and that dismissal for rejecting it was not unfair. So in effect the potential 25% uplift on compensation under the proposed code of practice is useless, as my noble friend Lord Woodley said and as the P&O Ferries scandal to which my noble friend Lady O’Grady referred shows, in relation to statutory capped compensation.

Fire and rehire is currently lawful because the law allows both the employer and the employee to give notice to terminate the contract of employment. For that fundamental reason, it is impossible to ban the practice, yet the tactic is plainly unacceptable where it is deployed simply to exploit managerial power in circumstances where the business faces no existential threat.

Its use may at least be understandable, if still not acceptable, in the rare situation where a business faces a dire and sudden crisis. The Bill allows for that so, as my noble friend Lord Woodley has pointed out, it does not ban fire and rehire. Instead, it imposes modest procedural obligations on employers seeking to reduce labour costs in this way. It applies only to establishments with 50 or more employees. It applies only where there is shown to be a real threat to continued employment or to contractual changes likely to affect 15 or more employees. In those circumstances the Bill imposes two obligations on employers. The first is to consult with a view to reaching agreement to avoid dismissals or contractual changes. Those consultations will be, as elsewhere in the legislation, with representatives of recognised unions or elected representatives. The second obligation is to disclose the information necessary to have meaningful negotiations and as required for good industrial relations.

There is an exception for information whose disclosure would seriously harm the undertaking or be contrary to the interests of national security. Any disputes over disclosure can be referred to the industrial relations expertise of the Central Arbitration Committee. Likewise, a dispute over whether there is proper consultation or proper disclosure can be referred to the CAC, which can then either refer the complaint to ACAS for conciliation or determine the complaint itself and make an order. In the case of non-compliance with a CAC order, a worker’s representative can seek a court injunction to compel compliance or to render void any dismissals or contractual changes in breach of the order.

Alternatively, a worker offered re-engagement on different terms may obtain an employment tribunal declaration if the tribunal concludes that the employer breached the Bill’s requirements of consultation and disclosure. In that case, “just and equitable” compensation may be ordered in respect of losses attributable to the dismissal or contractual changes. An employment tribunal may also declare that any “less favourable” variation of a contract of employment is void if brought about by the threat of dismissal where the consultation and disclosure obligations have been breached.

Where an employee is dismissed for refusing a contractual variation, “some other substantial reason” will no longer serve as a justifiable defence; and the two-year qualifying period for unfair dismissal protection will not apply. Dismissal in breach of a CAC order or a collective agreement will render a dismissal automatically unfair. The remedy of reinstatement or re-engagement is strengthened by the Bill in these circumstances.

The Bill will also relieve trade unions of the procedural burdens in relation to industrial action in response to an employer’s proposal to vary terms and conditions under threat of dismissal. The Bill provides that the Secretary of State must be notified of situations giving rise to the obligation to consult, and it will be an offence on the part of the undertaking and of any responsible director or manager not to do so.

By these means, so long as the employer does its reasonable best to consult and disclose, it has nothing to fear from litigation and can achieve variation of terms and conditions, if necessary by compulsion. I commend my noble friend Lord Woodley’s Bill to the House.

You can watch the video of his speech here: