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July 13, 2021
•July 13, 2021•

You’re fired (and re-hired)! Recent lessons on how not to vary employment contracts

You’re fired (and re-hired)! Recent lessons on how not to vary employment contracts

Key Contact: Claire Knowles

Author: Adam McGlynn

In one way or another, businesses have spent the last year adapting. Some industries have been presented with unexpected opportunities for growth and innovation, while other industries have fought for survival amid uncertainty and business restrictions. For businesses considering redundancies, the Coronavirus Job Retention Scheme (CJRS) has been a lifeline for retaining talent. However, as restrictions ease and the CJRS begins to withdraw, employers are looking to clarify the terms and conditions that will apply to employees moving forward.

As working arrangements change, variations to employment contracts have been, and will continue to be, necessary. The ideal outcome is for employees to agree to proposed changes voluntarily, perhaps because the proposed arrangement is mutually beneficial. Where an employee is more reluctant to agree, however, the option may be open to the business to terminate their contract and offer re-engagement on new terms, provided the proposed changes pursue sound business reasons. This process is sometimes called ‘termination and re-engagement’ or ‘fire and re-hire’.

When pursuing a termination and re-engagement exercise, it is important to remember that the dismissal itself must still be lawful, despite the hope that the employee will accept re-engagement on the terms proposed. A recent reminder of this can be found in the case of Khatun v Winn Solicitors where the business had sound business reasons for seeking a contractual variation, and had a potentially fair reason to dismiss Ms Khatun for rejecting the variation, but failed to follow a fair process when doing so. Ms Khatun was allowed 24 hours to accept a variation to her employment contract or she was told she would face dismissal. Her rejection of the variation was followed by a short informal conversation with the employer before being dismissed the next day without any formal correspondence. As Winn Solicitors failed to act reasonably, and had not applied a fair and reasonable process, Ms Khatun was successful in her claim for unfair dismissal.

Debate surrounding the future of the termination and re-engagement process has recently hit the headlines with other organisations, such as British Gas and British Airways, being publicly criticized for their practices. British Gas were engaged in a nine-month dispute over employee working hours before pursuing a termination and re-engagement exercise that resulted in 500 employees refusing to return on the terms offered. British Airways also faced media criticism when proposing to re-engage its non-pilot workforce on reduced pay following the detrimental impact of Coronavirus restrictions. In response to rising concerns, ACAS have published a report to assist the Department for Business, Energy and Industrial Strategy in its consideration of the issue, however, the Government are yet to announce any proposed reforms.

Watch this space for further updates on possible termination and re-engagement reform and if you would like support varying employment contracts within your business, our Employment Team are standing-by to assist.

•July 13, 2021•

‘Workers’ Are Workers Too! Protection from Health & Safety Detriments Extended to Workers

‘Workers’ Are Workers Too! Protection from Health & Safety Detriments Extended to Workers

Key Contact: Claire Knowles

Author: Adam McGlynn

Health and safety concerns have dominated the 2020/21 zeitgeist, and with good reason. In a year of tragedy and uncertainty, it has been difficult to determine how best to protect ourselves and each other without losing our sense of community and purpose. Oftentimes contradictory guidance has left businesses and staff to reach their own conclusions on the level of danger posed by COVID-19, and what measures might be appropriate. As expected, the past year has seen a greater prevalence of staff taking action on the premise of health and safety concerns, highlighting an inconsistent approach to ‘employees’ and ‘workers’ under UK law which has now been addressed.

What is a ‘worker’?

The term ‘worker’ takes its own meaning under UK employment law and includes not just employees but also individuals who undertake to personally provide services for a business, where the business is not a customer or client of the individual’s business or profession (as would be the case with self-employed contractors). This threshold is easier to satisfy than that of full ‘employee’ status and workers are provided with fewer rights by comparison.

Health and Safety Protections

The EU Health and Safety Framework Directive (EU H&S Directive) provides that workers who take appropriate steps to avoid serious and imminent danger cannot be placed at a disadvantage by their employer as a consequence. However, when the EU H&S Directive was transposed into domestic law, the UK version only provided protection to ‘employees’, thereby excluding other ‘workers’ from protection if they take steps to prevent or reduce risks to their health and safety in the face of serious and imminent danger at work. The High Court has recently held that such an interpretation of the EU Directive is incorrect, and this protection ought to be extended to workers.

R (IWUGB) v Secretary of State for Work and Pensions

In the High Court, Chamberlain J noted the disparity between protection for workers and employees and concluded that the UK Parliament had erroneously excluded workers form such protection. As a result, the Court held that the UK “has failed properly to implement the Framework Directive,” by excluding workers from protection.

What does this mean?

In light of this judgement, new regulations have been implemented to extend protection from health and safety detriments to workers, not just employees – The Employment Rights Act 1996 (Protection from Detriment in Health and Safety Cases) (Amendment) Order 2021). Workers should not feel pressured to expose themselves to unnecessary health and safety risks on the basis of their worker status as they now have equal protection against detriments and can, therefore, take appropriate action to protect themselves without fear of adverse consequences.

If you would like to read about whether fear of COVID-19 could be a reasonable excuse for refusing to attend work, you can read more on this topic here.

If you would like to know more about health and safety rights and obligations in the workplace, please feel free to contact our Employment Team who are standing by and happy to help.

•July 13, 2021•

‘Freedom Day’ in sight as England & Wales confirm dates for easing Coronavirus restrictions

‘Freedom Day’ in sight as England & Wales confirm dates for easing Coronavirus restrictions

Key Contact: Claire Knowles

Author: Adam McGlynn

In Boris Johnson’s address to the nation on 12 July, the Prime Minister announced that previously proposed easing of Coronavirus prevention measures and restrictions in England would proceed as planned on 19 July 2021. This date, coming to be known as ‘freedom day’, follows a 4-week postponement to allow further roll-out of the vaccination programme amid rising daily cases and hospitalisations. It is expected that by 19 July every adult in the UK will have been offered their first vaccine dose and 64% of the adult population in the UK will have received two doses of the vaccine.

On 14 July 2021, Wales announced a more conservative approach which will see Wales move to Alert Level 0 on 7th August 2021.

Why Now?

The Government’s decision to further ease lockdown restrictions is based on the four roadmap tests:

  1. Successful roll-out of the Government’s vaccination programme
  2. Sufficient evidence that vaccines are effective in reducing hospitalisations and deaths
  3. Sufficient evidence that infection rates will not risk a surge in hospitalisations which would put unsustainable pressure on the NHS
  4. Sufficient evidence that the risks are not fundamentally changed by new variants of concern

Professor Chris Witty explained that there is wide agreement that tests 1, 2, and 4 are satisfied. Concerns regarding test 3 arise when taking the current rising rate of daily cases and hospitalisations into account. However, Professor Chris Witty and Boris Johnson explained that, though cases are currently rising, and there will inevitably be an ‘exit wave’ as restrictions ease, modelling data suggests that cases and hospitalisation rates should remain manageable. Proceeding with reduced restrictions during the summer will also take advantage of the school holidays and the warmer weather, though it was acknowledged that the vaccination programme is still incomplete and there is no ‘perfect date’.

What is Changing?

The changes taking effect from 19 July will signify the UK’s move to step 4 on the Government’s roadmap to recovery. All legal restrictions will be lifted, however, guidance will still be published and individuals and businesses will be expected to exercise caution and common sense. In particular, the following key changes will take place:

  • Legal obligations to exercise social distancing will be lifted
  • Legal obligations to wear face masks will be lifted, though the Government still recommend wearing face masks when in close proximity with those you do not usually spend time with, and on public transport
  • Government guidance to work from home where possible will be lifted, though businesses may consider a staggered return if they wish
  • Business restrictions will be lifted, however, the Government recommends that nightclubs and crowded venues use the Covid Passport system.

Test and Trace

Test and Trace will continue to operate as usual for the time being. However, from 16 August, it is proposed that under 18-year-olds, and those who have received two doses of the vaccine, will not be required to self-isolate if instructed to do so via test and trace. It is worth noting that, even after receiving two doses of the vaccine, this proposed change is not currently proposed to affect other reasons to self-isolate, such as living with someone who has tested positive.

Restrictions in Wales

Wales, currently at Alert Level 2, have taken a slightly more cautious approach to easing Coronavirus restrictions, planning to move to Alert Level 1 on 17 July and then Alert Level 0 on 7 August, provided that cases remain low. The key differences between the three Alert Levels can be seen below:

Alert Level 2 (until 17 July)
  • Up to 6 people can meet at indoor venues
  • Up to 30 people can meet outdoors
  • Home visitors are limited to household and extended household members
  • Social distancing is mandatory
  • People should work from home wherever possible
  • Masks are mandatory in indoor public spaces and on public transport
Alert Level 1 (From 17 July until 7 August)
  • Indoor events can host 1,000 seated or 200 standing attendees
  • No limit on people who can meet outdoors
  • Home and holiday accommodation visitors are limited to 6 people
  • Social distancing outdoors is no longer required
  • Further businesses can reopen including ice rinks
  • People should work from home wherever possible
  • Masks are mandatory in indoor public spaces and on public transport
Alert Level 0 (From 7 August)
  • Legal limits on people meeting both indoors and outdoors are lifted
  • Social distancing indoors is no longer required
  • All businesses can reopen including nightclubs
  • People should work from home wherever possible
  • Masks are mandatory in indoor public spaces and on public transport, but will not be required in hospitality settings

If you would like further advice on Coronavirus restrictions, vaccines, or managing your employees through the return to the workplace, please contact our Employment Team.