1. Fire and Rehire – Government Softens Proposed Ban
The Employment Rights Bill continues to target “fire and rehire” tactics, where employers dismiss staff to impose new terms. Dismissals linked to restricted variations (e.g. reductions in pay, hours, pensions, or time off) will be automatically unfair unless the employer can prove serious financial difficulty and that the changes are essential to business survival. Even then, fairness and consultation duties remain key. For unrestricted variations (like location or duties), dismissals remain potentially fair but tribunals will apply a new statutory fairness checklist. Replacing employees with non-employees (e.g. agency staff) will also be automatically unfair unless justified by serious financial distress.
2. NDAs – New Restrictions from 1 October 2025
Changes under the Victims and Prisoners Act 2024 clarify that NDAs cannot prevent victims from reporting crimes or seeking confidential advice and support. Employers must now update settlement and confidentiality clauses to reflect these additional rights.
3. Harassment and Employer Liability
The EAT in AB v Grafters Ltd confirmed that harassment can occur “in the course of employment” even outside the workplace if there’s a sufficient link to work (e.g. a lift home). HR teams should ensure policies and training cover any interactions connected to work, not just those on-site or in working hours.
4. Recruitment and ‘Team Fit’
In Kalina v Digitas LBI Ltd, an unsuccessful candidate claimed discrimination after not being chosen because the interviewer “vibed” better with another applicant. The tribunal dismissed the claim, confirming that considering “team fit” is not automatically discriminatory — provided it’s applied fairly and without bias.
5. Probationary Periods – Common Pitfalls
Probationary periods must be clearly defined in contracts and properly managed. Employers should act before the period expires and cannot use probation to delay statutory rights. Including wording that probation continues until confirmed in writing can prevent disputes.
6. Redundancy and Alternative Employment
Employers must explore all possible alternative roles — not just similar ones — during redundancy processes. Failure to do so can render a dismissal unfair. An unreasonable refusal by an employee of suitable alternative employment may forfeit redundancy pay.
7. Whistleblowing and Misconduct
In Argence-Lafon v Ark Syndicate Management, the EAT confirmed that whistleblower protection doesn’t shield employees from legitimate performance or conduct action. Once an allegation has been fully investigated, continued disruptive behaviour can justify dismissal.
8. Spyware and Employee Monitoring
The case of Lanuszka v Accountancy MK Services warns employers against relying solely on remote-monitoring data to discipline staff. A fair investigation must accompany any action, and clear rules on personal use of company equipment should be communicated.
9. Restructuring vs Redundancy
Employers should distinguish between genuine redundancies and dismissals for “some other substantial reason” (SOSR). Mislabelling can risk unpaid redundancy claims. Even if roles remain, a reduced need for work may still amount to redundancy (Packman v Fauchon).
10. The Manchester Derby ‘Own Goal’
An Etihad Stadium bar worker was dismissed after wearing a Manchester United shirt while serving City fans. Although seemingly harsh, the decision was likely justified due to reputational risk and potential customer backlash, especially if the worker was agency staff with no ongoing employment rights.
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