The practice of ‘fire & rehire’ has attracted a lot of negative press in recent months, particularly since the mass dismissals by P&O ferries in March this year albeit that was a fire, without the rehire.

Fire and rehire refers to the practice whereby employers terminate an employee’s existing contract & re-engages that employee on different terms in order to make a contractual change. Whilst this practice is lawful, it is very controversial. In our experience,  employers only move to dismiss  and re-engage as an absolute last resort and after following a process of engagement and consultation to try and agree the change in the first instance.

Background to Tesco v USDAW

In February 2022 the High Court (HC) granted an injunction against Tesco preventing them from dismissing and re-engaging employees the purpose of which was to remove a benefit that had previously been described as a permanent right to retained pay.

The HC found that Tesco had previously guaranteed certain employees a permanent benefit that they were now seeking to remove. HC therefore implied a term in the workers’ contracts preventing them from terminating the employees’ contracts if the aim was to remove this right to ‘retained pay’.

Court of Appeal decision

Tesco appealed to the Court of Appeal (CA) and on 15 July 2022 the CA delivered its judgment overturning the injunction restraining Tesco from ‘firing and rehiring’ effectively  paving the way for this to happen. The CA held that there was no authority for an injunction to prevent a private sector employer from dismissing an employee for an indefinite period.

It is arguable that the Tesco case/judgment is fact specific. However, the decision will be very welcome for employers as it restores the position back to the original starting point. The full Judgment can be accessed here.

Following the P&O Ferries saga, the GB government came under pressure to act. Less than two weeks later, on 29 March 2022, the GB government introduced a ‘New statutory code to prevent unscrupulous employers using fire and rehire tactics. Whilst the Code applies to GB only, it contains good practice guidance. Therefore in NI employers comply with the code when dismissing and re-engaging any of its workforce, it may assist in demonstrating the fairness of such dismissals.

We recommend taking specific legal advice prior to making any steps to terminate an employees contract of employment.

Both the Health & Safety Executive in GB (HSE) & and Northern Ireland (HSENI) have updated their guidance stating employers must carry out Individual Risk Assessments

for all workers who:

• are pregnant;
• have given birth in the last six months;
• are currently breastfeeding.

This is in addition to the General Risk Assessment that employers must complete to assess any potential risks to women of childbearing age.

This requirement applies to all workers which the guidance confirms includes gig economy, agency or temporary workers who should be treated no differently to other workers.

Until now, there was some ambiguity surrounding when employers were required to conduct individual risk assessments for pregnant employees. This update removes that ambiguity and clarifies that employers must complete an Individual Risk Assessment for all pregnant workers.

The Guidance states that:

“Once your worker has informed you in writing [of their pregnancy], you must complete an individual risk assessment and make any necessary changes to support them.”

To complete the risk assessment the employer should:

• Review their existing general risk management and controls for pregnant workers and new mothers;
• Talk to the worker to see if there are any conditions or circumstances with their pregnancy that could affect their work;
• Discuss any concerns they have about how their work could affect their pregnancy;
• Consult with their safety representative or trade union if they have one.

Employers must also take account of any medical recommendations provided by the pregnant worker’s doctor or midwife.

Having conducted an initial Individual Risk Assessment, it states that employers should review their worker’s individual risk assessment and make any necessary adjustments as:

• The pregnancy progresses or;
• if any significant changes to workers’ activity or workplace.

Employers should also record their findings and share them with the worker and their safety representative if they have one, explaining how you will keep them and their child safe.

If a risk is identified, it sets out that the steps that should then be taken that includes:

1.    Adjust the working conditions or hours to avoid the risk

2.    Give them suitable alternative work

3.    Suspend your employee on paid leave for as long as necessary to protect their health and safety and that of their child

The Guidance also includes sections on ‘Rest and breastfeeding at work’ and ‘Night work.’

You can access the Guidance for Northern Ireland here HSENI Guidance New & Expectant Mothers and for Great Britain HSE Protecting Pregnant Workers & New Mothers

It is fair to say, that if you are an employer, you may well be facing significant difficulties in recruiting and retaining employees in your workplaces at present. External factors, such as Brexit and a post pandemic ‘boom’ , have led to a labour shortfall, with Organisations turning to online platforms, such as LinkedIn, to widen the scope of potential applicants/candidates.

This, of course, is leading to an influx of applicants from outside of the UK who do not have the requisite right to work status. Many employers are currently faced with the quandary; do we have to interview every applicant who meets our criteria, or can we deselect those who do not have the right to work in the UK?

This is a question we are being asked to advise on more and more.

Before deciding on their approach, employers need to be aware that deselecting candidates based on location/right to work status could potentially leave them vulnerable to claims of discrimination on grounds of race/nationality.

The law

It is indirectly discriminatory to apply a provision, criterion, or practice (the PCP) which, although applied equally to all in a situation, puts certain people (here those of a different nationality) at a disadvantage and which cannot be shown to be a proportionate means of achieving a legitimate aim. This covers not only individuals who are put at an actual disadvantage by a provision, criterion, or practice but also individuals who are deterred because of it. In this scenario those who are deterred from applying for the advertised position.

There is a defence to claims of indirect discrimination if the Organisation can show there is a legitimate business reason for having the provision, criterion, or practice and that it is applied in a way that is proportionate i.e., the PCP is no more discriminatory than necessary. This is referred to the ‘objective justification’ defence.

Case law has held that cost alone is unlikely to justify discrimination –it cannot be a valid reason to simply say it was cheaper to discriminate. Furthermore, the more the PCP has a discriminatory effect, the more difficult it is for an employer to objectively justify it.

Objective Justification and Right to Work Checks

The issue of indirect race discrimination and right to work checks was considered in 2009 by the GB Employment Appeal Tribunal (EAT) in the case of Osborne Clarke Services v Mr A Purohit. The EAT decisions are not binding in Northern Ireland but are highly persuasive. Osborne Clarke, a law firm, had a policy of not considering any applications for solicitor training contracts from individuals who required permission to work in the UK. Their rationale was that they had enough applicants from the resident labour market to always fill those posts.

Mr Purohit, an Indian national, had sought to apply for a training contract with the firm. In light of Osbourne Clarkes’ policy his application was not considered as he did not have the right to work in the UK.  At first instance, the Employment Tribunal found that the firm’s policy was indirectly discriminatory on the grounds of nationality, as the proportion of non-EEA nationals who could comply with it was considerably smaller than the proportion of persons not in that group who could comply (that is, EEA nationals) and the policy was not justifiable. Therefore, Mr Purohit succeeded in his claim of indirect race discrimination. The EAT upheld the original Tribunal’s decision, rejecting the employer’s argument that the policy saved time and costs as that was ‘an unattractive way of justifying indirect discrimination’.

The upshot of this is that having a rule that the Organisation will deselect those without the right to work in the UK your recruitment process would amount to indirect discrimination on grounds of nationality unless that rule could be justified by the business.

To justify the rule, the business would have to consider its business case. The costs alone of sponsoring the role or the business having to become a sponsor is unlikely to be sufficient.

The Code of practice for employers: avoiding unlawful discrimination while preventing illegal working (which extends to Northern Ireland) states:

“Job applicants and employees with a time-limited right to work

Job applicants should not be treated less favourably if they produce acceptable documents showing a time-limited right to work in the UK. Once a person who has time-limited permission to stay in the UK has established their initial and ongoing entitlement to work, they should not be treated less favourably during their employment, including as to the terms of their employment, opportunities for training, promotion or transfer, benefits, facilities or services, or by dismissing the worker or subjecting them to some other detriment, other than further right to work checks as prescribed in the guidance …”

The Equality Commission Northern Ireland (ECNI) does not cover this point directly (unlike its GB counterpart). In ECNI states:

“It is unlawful for an employer to discriminate:

• in recruitment and selection, including arrangements for deciding who should be offered employment; in the terms on which employment is offered; or by refusing or deliberately omitting to offer a person employment;”

In GB the recommendation is:

‘Eligibility to work in the UK should be verified in the final stages of the selection process rather than at the application stage, to make sure the appointment is based on merit alone and is not influenced by other factors.’ (See GB Code of Practice issued under the Equality Act 2010)

Practical Guidance for Employers

Organisations should not prevent individuals from applying for roles if they do not have the right to work in the UK at the date of application. Employers should (as far as possible) base selection purely on merit and right to work issues should only come into consideration at the last stages of selection. This is undoubtedly the safest approach for businesses and the best way to protect your Organisation from claims of unlawful discrimination.

If a preferred applicant requires sponsorship and the employer does not have a sponsorship licence and chooses not to apply for one, then the facts will have to be considered carefully to ascertain whether the decision is one that is legally justified. We recommend that you seek specific legal advice if the business is in this situation.

Any you require specific advice or support you should contact the Legal Team.

The law will be changed from 1 July 2022 to allow a wider category of healthcare professionals to certify fit notes. This change will apply throughout the United Kingdom and the purpose is to ease pressure on GPs.

From 1 July 2022, in addition to doctors, those that will be able to sign fit notes will include:

• Nurses,
• Physiotherapists;
• Occupational Therapists; and
• Pharmacists

This will end the current rules that only allow doctors to legally sign fit notes.

The Northern Ireland Regulations were published on 10 June 2022 and can be accessed here

The Explanatory Note in the Regulations confirms that separate guidance will be available on https://www.nidirect.gov.uk to assist understanding of how to comply with fit note Regulations. This will be updated and publicly available on before 1 July 2022.

We will keep Members updated on this; if any Member has any questions they should not hesitate to contact the Legal Team

On Monday (6 June 2022) around 70 UK companies consisting of approximately 3,300 workers (with one firm based in Northern Ireland) started working a four-day week with no loss of pay in a 6-month trial of the new working pattern.

This is thought to be the largest of its type in the world and is led by campaigning group 4 Day Week Global.  The theory is based on the 100:80:100 model – 100% of pay for 80% of the time, in exchange for a commitment to maintain 100% productivity.

Academics from Oxford and Cambridge Universities, as well as Boston College will analyse how employees respond to having an extra day off, in terms of areas including stress and burnout, job and life satisfaction, health, sleep, energy use and travel.

Many will be interested in its results likely to be published in 2023.

In response to the rising cost of living, the Living Wage Foundation announced on 29 May 2022 that it will be bringing forward its annual review of the rates. Instead of announcing the rates in November 2022 which they usually do, it will now do so in September 2022.

The Real Living Wage is the only UK wage rate based on the cost of living.

There is no obligation on Organisations to pay the real living wage, but many employers have chosen to sign up to it. The current rate is currently £9.90 in the UK.  Once the new rate is announced employers will be encouraged to pay staff the rate as soon as possible. More information can be obtained from https://www.livingwage.org.uk/news/living-wage-foundation-responds-cost-living-crisis-%C2%A0

The calculation of Holiday Pay has been a live issue for several years and more so since the Northern Ireland Court of Appeal (NICA) handed down its judgment in Chief Constable of the Police Service of Northern Ireland and another v Agnew and others [2019] NICA 32 on 17 June 2019.

From 2011 onwards, a range of cases in both the European and UK courts overhauled the previously settled position of how holiday pay was calculated, with employers now required to include a variety of additional components where employees did not have ‘normal’ remuneration. The UK case of Bear Scotland [2014] also established the principle that underpaid holiday pay cannot be claimed as the last in a series of deductions where more than three months has elapsed between deductions, thus limiting the potential for years of backdated holiday pay claims.

However, in 2019 the NICA  in Agnew found that a 3-month gap between payments does not necessarily break a chain of deductions and as Northern Ireland does not have the 2 years back stop in place in Great Britain (which limits wages claims to a maximum of 2 years) this ruling potentially opened the flood gates for years of underpaid holiday pay, potentially going back to 1996 when EC Working Time Directive was first implemented.

The Court of Appeal also upheld the concept, which first originated in the judgement of the Industrial Tribunal,  of the ‘composite whole, it being the theory that each day of holiday consists of fraction or percentage of:

• % Working Time Directive leave (20 days);
• % Working Time Regulations leave (8 days) and;
• % Any additional contractual leave (x Days)

 Agnew was appealed to the UK Supreme Court (UKSC) where it was initially listed for Hearing in June 2021. The case, however, was subsequently removed from the list at the request of the parties, to allow for settlement discussions to take place, facilitated by retired NICA judge, Sir Paul Girvan QC.

Whilst mediation meetings were held in March 2022, the Police Federation (who are supporting the employees claims) announced that the PSNI did not receive required authorisation from Department of Finance to approve settlement figures.

So, Agnew has now returned to the UKSC where it is relisted for Hearing on 14 and 15 December 2022.

There are thousands of holiday pay cases stayed in Northern Ireland Industrial Tribunals pending the outcome of the Supreme Court decision. The UKSC Judgement is also pending in another holiday pay case of Harper Trust v Brazel which they heard in November 2021.That case deals with the issue of how to calculate holiday pay correctly for atypical working patterns such as term time workers. The effect of all this is that the focus will remain on holiday pay for some time yet.

If your Organisation has not yet done so, you should complete an audit of how you pay holiday to ensure the Organisation is compliant as incorrect calculations could prove costly.

The Northern Ireland Department of Health has changed the guidance on Coronavirus (COVID-19): self-isolating and close contacts. This follows changes to the rules on testing that came into force on 22 April 2022.

In summary, the changes are to:

• the definition of a close contact;
• cessation of wider community contact tracing; and
• the rules on self- isolation. Specifically there is now no difference in the guidance for those who are vaccinated and those who are unvaccinated.

We have set out these changes below and how they will affect businesses.

Self-isolation for those who test positive for Covid (no change)

If employees test positive, they should self-isolate for up to 10 days from date they took Lateral Flow Device (LFD) test or the date symptoms started (whichever is sooner). That date is considered to be Day Zero.

As before, they can potentially end self-isolation early from Day 6, if they have 2 consecutive negative tests 24 hours apart. This applies to both vaccinated and unvaccinated persons as there is now no difference in their treatment.

Close contacts of someone with Covid

The guidance now defines close contacts as those that live in same household as the person who has tested positive for Covid.

Routine contact tracing in wider community has stopped. The emphasis is now on the person who tests positive identifying their close contacts (whether household or workplace) rather than individuals being notified by the Public Health Agency. These close contacts are not required to self-isolate but to be alert to any signs that they are developing Covid.

Close contacts will not be advised to do LFD unless they develop symptoms.

Advice to individuals who are close contacts (whether household or in the workplace) includes:

• Be alert for Covid symptoms;
• Avoid close contact with vulnerable persons;
• If develop Covid symptoms, do LFD and isolate if test;
• Do not visit hospitals / other health & care settings.

Organisations should again note that if the person is identified as a close contact, there is no longer any distinction in the rules that apply to the vaccinated or unvaccinated.

We are excited to return to our in-person conference and to reconnect with everyone.

The legal team and our guest speakers will be covering the most topical issues and important developments for employers and HR professionals.

This will be a great event and we look forward to seeing you there.