What business is not thinking about change right now? Different kinds of work and new ways of doing it abound. It is likely that many existing contractual arrangements are not match fit for the new world.
There is a well-trodden path of implementing changes to terms and conditions for 20 or more employees, which as we know puts it in the ‘collective’ arena. Often this is achieved by giving notice under the outgoing contracts and presenting new ones with the changes incorporated on a ‘take it or leave it basis’. Colloquially known as “fire and re-hire” these tactics can be effective, if the complex and prescriptive regulations are complied with.
But stop press! There is a new and (so far) under-reported series of legal changes that are likely to catch out even the most experienced HR/IR professional. A perfect storm of changes make change perilous and give force to new union challenges and resistance.
If you are about to begin or are planning a collective change programme, particularly in a unionised environment then listen up. This meteorological alignment (or misalignment) comes in the form of: the Court of Appeal case of Kostal; USDAW’s Interdict (or Injunction), and the Private Members Bill in the House of Commons relating to fire and re-hire tactics.
The Impact on a Change Programme, and can it Proceed?
The case of Kostal UK Ltd Dunkley 2019 EWCA Civ 1009 is on its way to the Supreme Court. It is a case that caused panic amongst advisors as the Employment Appeal Tribunal (EAT) concluded that it was unlawful for a business to put an offer directly to employees outside of collective bargaining, even in cases where an impasse has been reached regarding the proposals. It effectively left the employer in the ‘Hotel California’ of terms and conditions change, allowing a TU to effectively create a complete blockade to any resolution.
The outcome sent shockwaves through businesses and those advising, who immediately pondered the question: well, what are you expected to do in such circumstances? Recently (and thankfully) the Court of Appeal said this was going too far. But the story isn’t over. The case is listed for hearing in the Supreme Court later this year…so needs to be factored into any significant change program planned for Q3 onwards this year.
USDAW and Tesco
In another shock outcome, USDAW managed to prevent (temporarily at least) Tesco from proceeding with plans to Fire and Re-hire. Some comfort can be taken in the fact that it isn’t legally binding and is not the final work in the case.
However, there is no doubt that this case will now be used by TU reps. It will be important for HR leaders to know how to navigate through it and keep the Tesco example in check.
Fire and Re-hire Members Bill
Is that enough? No? Well added to the mix above, a Private Members Bill has had its first debate in the House of Commons. It labels Fire and Re-Hire as immoral and serving only to undermine confidence and worker security while branding employers that adopt it unscrupulous and greedy. The Bill has little hope of becoming law under a Tory Government, but it is sparking press interest and provoking Union fury along the way.
This new environment therefore needs to be given special consideration and planning. Union counterstrategies need to be scrupulously wargamed; the expectations of stakeholders need to be set and managed to new levels.
None of the above represents the end of an employers’ ability to sensibly re-engage employees on terms that will safeguard its future but it is clear that there will be unique and forceful challenges along the journey and specialist and experienced advice will be an essential ingredient to success.
Join our Head of Industrial Relations, Chris MacNaughton in our latest webinar where we’ll dissect the storm, and look at:
- Are the conditions right for changing Ts and Cs right now?
- How to best approach the changes considering the above
- What to expect from unions?
- Contingency planning