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Mandy Li

Mandy Li is a Knowledge Lawyer in Baker McKenzie London office.

The practice of ‘fire and rehire’, where an employer dismisses a worker and then re-engages them on different (sometimes perceived as less favorable) terms, is a current hot topic in UK employment law. The government has, to date, declined to legislate on the issue, although it stressed that the practice should only be used as a last resort. On 29 March 2022, the government announced that it would introduce a new statutory code on the practice, which will also detail how employers should hold fair, transparent and meaningful consultations on proposed changes to terms of employment.

The Court of Appeal has overturned the Employment Appeal Tribunal’s decision which had read down section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) to give workers who participate in industrial action protection from action short of dismissal. The court confirmed that the protections in TULRCA, as drafted, do not extend to preventing employers from taking such action in response to striking employees. This means that a decision to potentially remove discretionary benefits from employees participating in industrial action would no longer give rise to a standalone claim under TULRCA.

In 2021, the government commissioned Dr. Tony Sewell to chair a new Commission on Race and Ethnic Disparities (CRED) to investigate race and ethnic disparities in the UK. CRED published its report into its findings in March 2021 which set out 24 recommendations to forward 4 overarching aims: (i) to build trust between different communities and the institutions that serve them, (ii) to promote greater fairness to improve opportunities and outcomes for individuals and communities, (iii) to create agency so individuals can take greater control of the decisions that impact their lives, and (iv) to achieve genuine inclusivity to ensure all groups feel a part of UK society.

The Employment Appeal Tribunal (EAT) has held that the lack of protection from detriment for participating in industrial action under section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) was a breach of Article 11 of the European Convention of Human Rights (ECHR) which guarantees the right to freedom of assembly and the right of workers to form and join trade unions. The EAT held that it was possible to read such protection into section 146.

The government has published its response to its consultation on sexual harassment in the workplace, which closed in October 2019. When parliamentary time allows, the government will legislate to introduce a new duty on employers to prevent sexual harassment in the workplace and introduce explicit protections for harassment from third parties such as customers and clients.