REWARD
Risk of claims go beyond the employment tribunal system
In each issue, NicolaMullineux, senior employment specialist for Peninsula, explores the interesting outcomes of three different employment law cases
M any employers are concerned their employees will raise claims against them to the employment tribunal (ET) and do everything possible to mitigate risks and avoid this happening. However, even where there are not viable ET claims, employees, workers, self-employed individuals and trade unions could still take action against organisations through the civil court system. Several issues have been highlighted recently, for which civil court action was reasonable and necessary. Fire and rehire practices banned by High Court The trade union, the Union of Shop, Distributive and Allied Workers, was granted an injunction against Tesco to stop it from using fire and rehire practices. This tactic has been publicly criticised and strongly discouraged by industry bodies, such as the Advisory, Conciliation and Arbitration Service and the Chartered Institute of Personnel and Development,
presents employers with a raft of new considerations and challenges. The union understood that an ET claim for unfair dismissal would pose limited chance of success. This was because of Tesco’s ability to argue sound reasoning for undertaking dismissal for some other substantial reason (SOSR) and immediate re-engagement. Instead, they adopted a different approach by filing an injunction to the High Court on behalf of 42 of its members, to prevent Tesco from doing so. The initial reason for completing the fire and rehire approach was due to Tesco’s decision to stop giving workers ‘retained pay’ – a permanent, contractual benefit which they promised would never be removed. While the facts of the case are specific to this particular benefit, and the implied term it should never be forcefully removed, the principles may apply to other organisations who wish to dismiss employees and re-engage them on less favourable terms and conditions.
so employers should exercise caution if using this practice. However, in addition to subsequent tribunal matters and reputational damage, this judgement Even where there are not viable employment tribunal claims, employees, workers, self-employed individuals and trade unions could still take action against organisations through the civil court system
| Professional in Payroll, Pensions and Reward | April 2022 | Issue 79 22
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