In our June 2024 legal round-up we explore the first ever 'fire and rehire' statutory code and a key tribunal case on race discrimination. We are also offering CIPD members a first-look at our dedicated AI and technology employment law page.

Did you know there is an upcoming change in TUPE law in July which expands the scope of when employees can be consulted?   

And finally, regardless of the result of the General Election, can we use history to indicate whether manifesto pledges are ever likely to become a reality in HR? 

First ever ‘fire and rehire’ code in force from July  

As parliament was set to dissolve ahead of the General Election, a series of regulations were approved. Within this period, known as ‘wash up’, the Code of Practice (Dismissal and Re-engagement) Order 2024 was passed for England, Wales and Scotland, with a commencement date of 18 July 2024.  

The regulation has the effect of making the code of practice in this area statutory. The code specifies the duties that employers ‘should’ and ‘must’ consider if there is a potential for ‘fire and rehire’ in their organisation.  

Employers should note that while the code’s 'musts' focus on expected rationale, such as only using ‘fire and rehire’ as a last resort and providing a reasonable consultation process, some of the 'should' elements are more unusual.  

The 'shoulds' include a recommendation that Acas are contacted about the prospect of ‘fire and rehire’ at the point at which attempts at an agreement between employees or representatives fail (rather than contacting Acas later down the line), and that there is a clear stipulation that threats of the prospect of dismissal should not be used as a negotiating tactic to pressure employees into agreeing to contractual changes.  

For organisations considering a dismissal and re-engagement process from July 2024, it is worth noting that failure to comply with the code will be considered in any unfair dismissal claim; with the potential for tribunals to uplift the award by 25% if the organisation is found in breach.  

The CIPD has published guidance on the matter.     

Employment law on AI and technology 

AI and technology is an emerging area of legislation and guidance across the UK. Our legal and subject-matter experts have created a dedicated legal resource for CIPD members: AI and technology in the workplace: UK employment law.

Race harassment for repeated misnaming 

A tribunal in north London has upheld a claim of race harassment after a manager called an employee 'Vikesh’, instead of his name, Viveak, despite being repeatedly corrected.  

The details of the case are complex; events had unfolded after the claimant, Mr Taneja, had been late collecting his new manager from Kings Cross train station in London. Tensions between Mr Taneja and Mr Davies developed in the car journey that followed – with the pair repeatedly clashing over their expectations.  

A short while into the journey the atmosphere in the car was noted as ‘toxic’. It was during this journey, and later the same day, that Mr Davies misnamed Mr Taneja four times. Following the misnaming an argument erupted between the pair, later the same day Mr Taneja was dismissed from his role. 

For people professionals, the actions amounting to race harassment should be noted. In delivering the tribunal’s decision, employment judge Sally Cowen stated that the action of misnaming the claimant was unwanted conduct with the effect of violating the claimant’s dignity.  

New rules on businesses changing hands 

As part of the transition regulations following Brexit, an amendment to TUPE law is in place from 1 July 2024.  

Under existing TUPE law (for processes triggered prior to 1 July 2024) there is an exemption for microbusiness consultations wherein organisations of fewer than 10 employees can inform and consult directly with employees, where no existing representation is in place. 

From 1 July 2024 more companies come into the scope of this exemption. From this date, for England, Scotland and Wales, where no existing representation is in place, employers may consult directly with employees where: 

  • the business employs fewer than 50 employees, or,
  • for businesses of any size, where fewer than 10 employees are affected. 

Please note that any employer that fails to comply with the correct information sharing requirements during a TUPE consultation may be liable for a protective award of up to 13 weeks’ pay per employee. A step-by-step guide of the TUPE process is available for CIPD members. 

Do general elections prompt employment law change? 

With parliament dissolved ahead of the General Election 2024, a series of pledges have been put forth by the competing political parties in the UK. The CIPD public policy team has provided details on notable areas in these manifestos, such as employment rights and the skills agenda. Indeed, we are pleased to see pledges from many parties to reform the apprenticeship system. 

Of course, what is promised is one thing, what is delivered another. People professionals and the general public alike may well question whether pledges actually transpire into meaningful change, particularly as it concerns employment law. The answer it seems, is quite probably...  

In an in-depth review of legislative reform since the 1970s on the CIPD community, CIPD Chief Examiner Stephen Taylor assesses which manifesto pledges have made it onto the statute book and whether we can hope for a reformative legislative agenda for HR after 4 July. 

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