Employment Edit: 2 May 2024

‘Fire and rehire’ code of practice

The implementation date for the new statutory code of practice on dismissal and re-engagement (often referred to as ‘fire and rehire’) has now been announced – it is set to take effect on 18 July 2024.

The code sets out the steps that an employer should follow when it is contemplating changes to terms and conditions and envisages it might dismiss employees if they do not agree to the proposed changes. Where an employer has unreasonably failed to comply with the code, any awards for relevant employment tribunal claims can also be increased by up to 25%. Draft legislation has been published that would, if passed, extend the tribunal’s power to apply such an uplift to a protective award made for an employer’s failure to comply with its collective consultation obligations. Protective awards can be up to 90 days’ pay per employee, and the uplift would be applied on top of this, so the consequences of unreasonably failing to comply with the code could be significant.

Whistleblowing detriment

When assessing in a whistleblowing detriment case whether a decision was materially influenced by a protected disclosure, the motivation of the decision-maker and another person should not be merged.

The claimant, a doctor, made several complaints about a colleague. These included a complaint that the colleague had not carried out a proper handover of her duties and that this had had a negative impact on patient care. Following a later confrontation between the claimant and her colleague, the claimant was suspended, subjected to a disciplinary investigation and issued with a written warning. The claimant argued that these detriments were on the ground that she had raised protected disclosures, including the complaint about her colleague’s handover. The claimant argued that the disclosure contributed to a dysfunctional relationship between her, her colleague and a manager, and that this relationship gave rise to the series of detriments. The colleague and the manager were not the decision-makers who took the suspension, investigation and disciplinary decisions.

The tribunal found that the decision-makers were not motivated to any extent by the protected disclosure. Upholding this, the EAT found that, in detriment cases, the tribunal should not merge the motives of the decision-maker and another person – it must separate their motives. This means that it is only the decision-maker’s knowledge and motive that is relevant. This differs from whistleblowing dismissal cases, in which it would be relevant if a decision-maker had been influenced by a more senior employee who was motivated by a protected disclosure and hid that behind an invented reason.

(William v Lewisham and Greenwich NHS Trust)

Fit note reform

As part of its previously announced review into possible reforms of the fit note process, the government has issued an open call for evidence. In its launch document, the government has highlighted themes that it is particularly interested in views and evidence on, including the experiences of employers, individuals, carers and clinicians. Employers are invited to share their views on a range of topics, including how effective the current fit note process is at meeting employer needs and what additional information could be contained on fit notes that would support employees to successfully return to work following sickness absence. The call for evidence closes on 8 July 2024.

Holiday pay

The EAT has considered the meaning of ‘a series of deductions’ for the purposes of a holiday pay unlawful deductions claim, in light of the principles set out in last year’s Supreme Court decision in Chief Constable of the Police Service of Northern Ireland v Agnew.

In one of the first appellate cases to apply the principles set out in Agnew, the EAT held that:

The tribunal had erred in applying the so called ‘three-month break rule’, which had, prior to Agnew, established that a gap of three or more months between deductions would break a series of deductions.
Deductions that all arose because of a failure to factor in different allowances that should have been included in holiday pay were ‘sufficiently similar’ for the purposes of determining whether they formed part of a series of deductions.
It was not possible to retrospectively designate which holiday days would count towards the different ‘pots’ of annual leave that UK employees are entitled to – four week’s ‘Euro Leave’, additional UK leave and contractual leave. Instead, all holiday days were to be treated equally as part of the composite of the different types of leave. The question of how this works in practice remains unanswered.
The case now returns to the tribunal to determine a number of issues in light of these findings, including whether the deductions were part of a series – this will involve consideration of the timing between the deductions, albeit it is clear that a three month-break alone will not break a series.

(British Airways PLC v Mello and others)

Distributing tips fairly

Last week, the government issued a response to its consultation into the draft code of practice on the fair and transparent distribution of tips. As well as publishing an updated draft code alongside the response, the government also stated that the code and the measures contained in the Employment (Allocation of Tips) Act 2023 will come into force on 1 October 2024. Read more about the code and the measures included in the Act here.