Read this before you fire and rehire employees

In March 2022, following the P&O Ferries scandal, the government announced a new statutory code of practice on ‘fire and rehire’.

The code is designed to encourage employers to engage in meaningful consultations with employees if they wish to introduce changes to employees’ terms.

Firing and rehiring occurs when employers dismiss workers and rehire them on new, less-favourable terms, often to save operational costs.

P&O Ferries’ sacking of 800 staff by video recording demonstrates what not to do when planning to make redundancies or change workers’ terms.

Whilst terminating employment via a videocall is not ideal (it is the message rather than the delivery method that is important), the issue with the P&O Ferries case is the lack of warning or consultation.

Had they complied with their legal obligations, P&O Ferries would have notified the government’s Redundancy Payments Service, then informed staff of the risk of redundancy and entered formal consultations for a minimum of 45 days with affected employees.

The 45-day requirement applies where an employer proposes to make more than 100 staff redundant.

During the consultation process, alternatives to dismissal would have been explored and although, ultimately, it may have made no change to the outcome, staff would have been given time to adjust and explore options.

The new statutory code will assist businesses to hold transparent consultations and to act as a deterrent to businesses in similar circumstances to P&O Ferries.

Its use will be considered by courts and employment tribunals when determining claims.

Where employers unreasonably fail to follow the code, employees’ compensation may be increased by up to 25 per cent.

Currently, legislation to implement the new code will be introduced when parliamentary time allows.