Whereas negotiation ought to all the time be your first method to altering the contractual phrases of your workers, there are occasions when it doesn’t work.

In essentially the most fundamental instance, in the event you transfer places of work, you should seek the advice of with staff in regards to the transfer and their new work location. In case your employment contracts are correctly written you’ll have a contractual proper to vary the work location for every worker, however in observe, that doesn’t imply that everybody can or needs to vary location.

It is advisable seek the advice of with workers, and this can be particular person or group session relying on the numbers concerned. This session might want to lay out the enterprise case for the transfer and all different elements which you may have taken under consideration when contemplating the transfer. It is advisable permit adequate time for a significant session, the place you genuinely take heed to the suggestions from the affected staff and search methods to keep away from the necessity for the change, on this case an workplace transfer.

The affect on every worker must be rigorously thought of. It could be that one worker has a five-minute stroll to work and that the workplace transfer will contain two buses with a journey time of over an hour for that worker.

It could be that you’ve got a wheelchair-bound worker who is ready to entry the present constructing, however will likely be unable to achieve or entry the brand new constructing.

Alternatively, you will have a nursery very near your present places of work the place a number of staff use the care provisions, however the brand new location doesn’t have such a facility leading to important childcare challenges for workers.

Not wanting to maneuver the to the brand new location might be primarily based on real points, reasonably than a stubbornness and a need to keep up the present standing.

What selections do I’ve?

On this scenario employers have two selections:

• Provide redundancy to staff who actually can’t make the transfer
• Terminate the employment of these staff refusing to maneuver and supply them a brand new contract with new phrases and circumstances, together with the brand new workplace location

The workers even have selections:

• They may resign and stroll away. That is commonest the place the modifications to the contract are truthful and cheap and the worker simply doesn’t wish to settle for the modifications
• They settle for redundancy and obtain a correct fee (at or above statutory redundancy pay) as their job is genuinely redundant (on the previous location) and the brand new job is within the new location which they’ll’t get to
• They settle for the brand new contract on supply
• They carry a declare for constructive dismissal within the employment tribunal, both as a person worker or as a part of a bunch of staff, or by way of their representatives

Not all instances are as easy as a neighborhood workplace transfer.

One of the crucial talked about instances was P&O in March 2022. On this case 800 staff have been sacked with no warning and no session. The corporate wished instant change and did not comply with any authorized course of.

What the draft hearth and rehire statutory code says

In January 2023, partly in response to the P&O case, a draft code of observe on dismissal and re-engagement was launched by the Division for Enterprise, Vitality and Industrial Technique (BEIS). The date it takes impact is but to be confirmed, however employers at the moment are inspired to behave as whether it is already in place.

Like different codes of observe within the employment world, it units out minimal requirements of behaviour which employers are required to fulfill. You may have your personal insurance policies and procedures, however they should be in keeping with or in extra of the provisions of the code. Failure to adjust to the code will likely be taken under consideration by an employment tribunal (ET) when contemplating any claims for unfair dismissal. If an worker (or group of staff) wins their case, there could also be an uplift of as much as 25 per cent utilized to the award imposed towards the employer.

The brand new code of observe (CoP) would require employers to take a enterprise resolution which takes under consideration the danger and affect of staff bringing a case towards the employer for the change of contract. So when deciding whether or not to power the modifications by means of with a dismiss and re-engage (hearth and rehire) technique, the prices of an employment tribunal, together with the price of defending the case, any awards towards them, any prices awarded towards them and the price of time, stress and reputational harm should all be quantified within the enterprise case to find out whether or not a fireplace and rehire method nonetheless outweighs the price of the modifications required by the enterprise which triggered the method within the first occasion.

The CoP will even require employers to revisit their enterprise technique in the course of the session course of to find out whether or not the preliminary causes for the modifications are nonetheless related and whether or not they are often achieved in some other method in order to keep away from a fireplace and rehire situation.

The place important modifications are required or modifications are required to a number of components of the contract of employment, the CoP recommends that the modifications are phased in over a time period and are continuously stored beneath evaluation to evaluate whether or not that change continues to be required given the affect of the preliminary modifications or any modifications within the setting – both inner to the enterprise or externally within the economic system for instance.

Battle round employment phrases and circumstances isn’t good for a enterprise. It can lead to poor retention charges, and this may all the time have a damaging affect on your small business. In search of to resolve considerations and transfer the enterprise ahead in a optimistic method is all the time extra conducive to enterprise success. Consulting and negotiating with staff reasonably than adopting a fireplace and rehire method will put your small business in a stronger place.

Methods to keep away from hearth and rehire

So what different choices are there?

Redundancy

An employer might search to make roles redundant and comply with a real, strong redundancy course of giving staff the chance to use for appropriate different employment throughout the enterprise if these roles exist. If the roles don’t exist, the staff are made redundant and paid redundancy pay in keeping with laws.

An instance of the place this can be related is the place a complete division is restructured, some roles disappear, others are created and headcount is decreased to realize value financial savings or higher working efficiencies.

In a redundancy scenario, the function is definitely disappearing. Different folks can’t be employed to do the function, in any other case it could not be a redundancy. Care should be taken to make sure that the brand new roles are considerably totally different from the previous roles and require totally different expertise/skillset.

Modifications for brand new staff

In some instances, particularly the place there aren’t any union negotiated contracts, it could be attainable to carry new staff right into a enterprise on totally different phrases and circumstances to these the present staff are on.

An instance of the place this has been used prior to now is with pensions. These staff on last wage schemes, stored their pensions, however new staff have been introduced into the enterprise on outlined contribution pension schemes, that are extra inexpensive for companies in the long run.

Different examples might embrace modifications to vacation entitlement. New staff might are available in on increased pay however with much less annual go away entitlement.

In these situations, it could be value providing the brand new phrases to current workers, however not forcing them to make the transfer from their present contract of employment. In the event that they keep on their current phrases, this is named ring-fencing.

Professional tip: One phrase of warning with this method is the danger of age discrimination. It could be that your longer serving staff on “previous” contracts have an age profile which is considerably older than your newer staff in your “new” contracts and due to this fact you could find yourself with an oblique discrimination declare because of this method. This gained’t all the time be the case, relying on your small business and the demographics of your current and new staff, however it’s value considering.

What else you must find out about hearth and rehire

The code applies to all enterprise, whatever the variety of staff you may have throughout the enterprise. Even with only one worker, in the event you want to make a change to their contract of employment, you will need to accomplish that in-line with the supply of the CoP.

It’s value noting that the employment tribunal doesn’t take the dimensions of your small business under consideration when making selections or awards. In case you are an employer, you will need to act as one, whatever the measurement of your small business.

The CoP additionally applies whatever the targets of your organisation or the explanations you’re looking for the modifications. Subsequently, even if you’re a charity or a not-for-profit enterprise and are making the modifications to extend your capacity to ship higher returns on your causes, you’re nonetheless anticipated to completely adjust to the CoP and your charity targets are secondary to the rights of your staff.

The CoP applies no matter whether or not you may have a written contract of employment in place or not. Customized and observe will prevail. For instance, in case you have no contract in place (that is unlawful and a topic for an additional article) and have all the time given somebody limitless holidays and also you then doc their phrases and circumstances as a contract and set a set variety of vacation days, this might put you in breach of the CoP except you may have agreed with the worker (consulted, negotiated and agreed) what their vacation entitlement goes ahead.

The CoP just isn’t legally binding, however as already referenced, if somebody brings a declare, it may be relied upon as proof.

In some instances, the place an worker has been unreasonable of their refusal to simply accept the brand new phrases and circumstances, and brings a declare towards their employer i.e., for unfair dismissal, the ET might lower any award towards the employer by as much as 25 per cent.

Hearts and minds

Altering phrases and circumstances of employment is tough, however not unimaginable. Communication and session are the guts of attaining a optimistic final result for all events. If, as an employer, you’ll be able to carry the hearts and minds of your workforce with you as you evolve, change and modernise your small business you’ll have a way more loyal workforce, who’re engaged along with your function and can all the time try for enterprise success.

Donna Obstfeld is founder and HR specialist at HR observe DOHR