Here are the key points regarding fire and rehire: - Fire and rehire involves terminating employees' existing contracts and offering re-engagement on new terms and conditions, often involving reduced pay or benefits. - Employers may use it to cut costs during difficult economic times by imposing changes to contracts that employees would not otherwise accept. - There are significant legal risks if not handled carefully, including claims for unfair dismissal if proper procedure is not followed, wrongful dismissal if there are no substantial reasons for termination, and potential collective consultation obligations. - Even if legally defensible, there are reputational risks from being seen to terminate loyal employees just to impose less favorable terms. It can damage employee trust and morale.

1. Employment Law Webinar
Thank you for joining.
We will be starting the event at 10.00 a.m.
1 July 2021
01 July 2021

2. Hybrid Working - Employment Law Implications
Rupert Scrase
01 July 2021

3. Hybrid Working
• What is hybrid working?
• What are the advantages?
• What are the pitfalls?
• Practical considerations
• Do we need to change contracts of employment?
• What do we need to include in a policy?
• Flexible working requests
• Returning to the office
01 July 2021

4. What is Hybrid Working?
• Different interpretations for different organisations
• Can employees work from home whenever they want?
• Can they work from a holiday home?
• Can they work abroad?
• Can they work at different times?
• Employers need to decide what will work in their organisation
01 July 2021

5. The Advantages
• Employee goodwill – surveys have shown that the majority of
employees favour a mix of office and home working
• Employee retention, particularly if other employers are offering
hybrid working
• Employee recruitment – potentially a larger geographical catchment
• Increased productivity – less time commuting, fewer distractions
• Less sickness absence
• Reduced requirement for office space and expense
• Reduced number of flexible working applications
01 July 2021

6. The Pitfalls
• Risk of isolation/risk to employee wellbeing
• More difficult to spot employees who are struggling and may need
help
• More difficult to manage poor performance and disciplinary issues
• Resentment of staff whose roles do not permit working from home –
2 tier workforce
• Risk of being forgotten and impact on career progression
• Risk of indirect discrimination if more women than men choose to
work from home for childcare reasons
01 July 2021

7. The Pitfalls (continued)
• Employees working too hard. No clear demarcation between work
and home life. Not taking rest breaks.
• Arguably may be more difficult to make reasonable adjustments for
disabled employees working from home – there is still a legal
obligation
01 July 2021

8. Setting the Parameters
It is important to set clear boundaries:
• Which roles can work from home?
• Do employees have complete flexibility to work where they want?
• Can employees work from the office permanently if they want?
• Do employees have to attend the office for a minimum number of
days? If so, will these days be fixed?
• When are employees required to attend the office? Training?
Meetings? Projects?
• Do they need their line manager’s agreement to work from home?
01 July 2021

9. Setting the Parameters (continued)
• Can employees work from a holiday home or abroad?
• Can employees work from a public space, for example a café?
• Can employees work at different times or should they maintain their
contractual hours?
• Do you require a trial period?
• Will certain employees be excluded from the arrangement, for
example those who have a poor performance or disciplinary warning?
• Can the employer end the arrangement? If so, how much notice will
be required?
01 July 2021

10. Practical Considerations
• Consultation – find out what your employees think. Conduct a survey?
• Do employees have appropriate space and equipment to work from home?
Shared housing? Desk?
• What equipment will you need to provide?
• How will you ensure employee health and safety for work from home?
Online training? Online risk assessment?
• Expenses - will you be paying employees for travelling into the office? Will
you offer any working from home expenses?
• Confidentiality – how will you ensure that personal data or confidential
information is protected?
01 July 2021

11. Practical Considerations (continued)
• Will there be pressure on office space if lots of employees decide to attend
the office at the same time?
• How will you ensure equal treatment between hybrid workers and office
workers?
• How will you ensure employees working from home are not also caring for
young children?
• Insurance considerations? Is the employer’s equipment covered? Is there
an impact on employee’s home insurance?
• Communication of new arrangements – particularly important where
employees have been at home for a long time.
• How will you avoid resentment from employees whose roles don’t permit
working from home?
01 July 2021

12. Health and Safety
• Employers are responsible for the health and safety of their
employees including those working from home
• Employers must carry out a risk assessment of employees’ work and
workplace including work carried out from home
• Consider online guidance and self-assessment
• Revisit health and safety risk assessments carried out in relation to
covid homeworking – considerations may differ for a long term hybrid
arrangement
• Review health and safety policy
• Involve your health and safety officer
01 July 2021

13. Health and Safety (continued)
The HSE and ACAS have produced useful guidance on working from
home.
• https://www.hse.gov.uk/toolbox/workers/home.htm
• https://www.acas.org.uk/working-from-home/health-safety-and-
wellbeing
01 July 2021

14. Changing the Employment Contract
• Section 1 statement must contain particulars of:
‘either the place of work or, where the worker is required or
permitted to work at various places, an indication of that and of the
address of the employer’
• The contract should set out the boundaries and reserve the right for
the employer to end the arrangement if it is not working
• If the employer does not change the contract, there is a risk that
employees will develop homeworking rights through custom and
practice – risk of ambiguity and dispute
01 July 2021

15. Introducing the Change
• Communicate your proposed hybrid working arrangements
• General announcement followed by small group announcements and
individual line manager discussions
• Listen to individual concerns – some employees may have good reason not
to work from home
• Check if contract has a mobility clause. Review if it covers this situation.
• If mobility clause doesn’t cover situation, seek agreement to amend
employment contracts
• Consider your approach if employees do not consent
• Potential collective consultation obligations if 20+ employees and
proposing terminating and re-employing on new hybrid terms
01 July 2021

16. Hybrid Working Policy
This should set out the detail of your arrangements:
• Minimum contact/availability requirements
• Restrictions on location from which employee may work
• Circumstances in which hybrid arrangement will not apply, for
example when an employee has a disciplinary/performance warning
• How employees should communicate with team members when
working from home
• Expenses – details of travel expenses or working from home expenses
that can be claimed
01 July 2021

17. Hybrid Working Policy (continued)
• Health and safety guidance
• Confidentiality obligations – guidance to ensure confidential
information and personal data is kept secure
• Consider whether any other policies need updating in light of hybrid
working arrangements, for example IT use policy, data protection
policy, expenses policy, health and safety policy
01 July 2021

18. Flexible Working
• Employees still have the right to request flexible working irrespective
of any hybrid working arrangement you put in place
• Continue to follow the statutory procedure
• Employees may be less likely to request flexible working
01 July 2021

19. A Statutory Right to Work From Home?
• The government's flexible working taskforce has recommended that
flexible working should be the new default position for all workers
• The government has indicated its agreement with this view
01 July 2021

20. Returning to the Office
• Potential anxiety for employees after so long at home
• Employers should conduct a rigorous health and safety audit
• Consider steps required to ensure employee safety in the office
• Involve employee representative groups
• Communicate results of health and safety audit and steps taken to
protect employees
• Communicate behaviour/new routines required of employees
• Consider means of communication – videos rather than lengthy e-
mails?
01 July 2021

21. Returning to the Office – Employees who
Refuse
• Automatic unfair dismissal if employee has reasonable belief in risk to
health and safety – ‘…danger which the employee reasonably believed
to be serious and imminent…’S.100 ERA 1996
• This will be more difficult to argue if employer has undertaken
thorough health and safety audit and put in place appropriate steps
to protect employees
• Some employees will have genuine concerns - listen to and try to
address these
• Potential SOSR dismissal
01 July 2021

22. Employment law and case law update
Alexandra Robinson
01 July 2021

23. Government guidance on return to work
• Easing of restrictions that was due to take place on 21 June in England
has been delayed until 19 July.
• Government guidance remains that:
—people should work from home if they can;
—if they cannot work from home they should continue to travel to their
workplace;
—employers should take every possible step to facilitate their employees
working from home, including providing suitable IT and equipment to enable
remote working;
—where people cannot work from home, employers should take steps to make
their workplaces COVID secure;
—extra consideration should be given to those at higher risk.
01 July 2021

24. Links to Government guidance
Government guidance
• (Covid-19) Coronavirus restrictions: what you can and cannot do
—https://www.gov.uk/guidance/covid-19-coronavirus-restrictions-what-you-can-and-
cannot-do
• Working safely guidance
—https://www.gov.uk/guidance/working-safely-during-coronavirus-covid-19
ACAS guidance
• Working safely during Coronavirus
— https://www.acas.org.uk/working-safely-coronavirus
• Working from home
—https://www.acas.org.uk/working-from-home
01 July 2021

25. Coronavirus related case law
• We are starting to see some case law on Coronavirus related issues
coming through the Tribunal system
• Remember:
—Beware of treating them as “precedent”
—Each case is fact specific – look beyond the headlines
—Tribunal level judgments – not binding on future cases
—May be subject to appeal – so judgments may be overturned
—Constantly evolving situation – what was relevant then may not be relevant
now depending on the circumstances
• Any lessons for employers to learn?
01 July 2021

26. S 100 ERA 1996 – automatic unfair dismissal
• A dismissal is automatically unfair where the reason for the dismissal
is that:
—In circumstances of danger which the employee reasonably believed to be
serious and imminent and which he could not reasonably have been
expected to avert, he left (or proposed to leave) or (while the danger
persisted) refused to return to his place of work (s100 (1) d) ERA); or
—In circumstances of danger which the employee reasonably believed to be
serious and imminent, he took (or proposed to take) appropriate steps to
protect himself or other persons from the danger (s100 (1) e) ERA).
01 July 2021

27. Automatic unfair dismissal claims
Rodgers v Leeds Laser Cutting Ltd
• Mr R texted his manager in March 2020 to confirm that he had “no
alternative but to stay off work until the lockdown has eased” due to
his concerns about infecting his vulnerable children. A month later,
he was dismissed.
• Mr R had less than 2 years’ service and claimed automatic unfair
dismissal under s100 (1) d) and s100 (1) e) ERA.
• ET: the Claim failed.
01 July 2021

28. Automatic unfair dismissal claims
• Relevant factors included:
—Mr R had breached self-isolation guidance to drive a friend to hospital
the day after leaving work.
—His message to his employer did not mention concerns about
workplace danger and he could not show there had been any such
danger. The employer had implemented the precautions advised in Gvt
safety guidance.
—Mr R had not taken any steps to avert danger or raise concerns with his
manager before absenting himself from work. This was not appropriate.
01 July 2021

29. Automatic unfair dismissal claims
• The ET rejected the argument that Covid created circumstances of
serious and imminent workplace danger regardless of the employer’s
safety precautions. It found that accepting this submission could lead
to any employee being able to leave the workplace, simply by virtue
of the pandemic.
01 July 2021

30. Automatic unfair dismissal claims
Gibson v Lothian Leisure
• Mr G was a chef in a restaurant. It closed temporarily due to
lockdown and he was furloughed. Before re-opening, the employer
asked Mr G to come to work.
• Mr G was concerned about catching Covid at work and passing it to
his clinically vulnerable father. He raised concerns about the lack of
PPE or other Covid-secure workplace precautions. He was told to
“shut up and get on with it”.
• Mr G was dismissed summarily by text message, which said the
employer was changing the format of the business and would be
running with a smaller team.
01 July 2021

31. Automatic unfair dismissal claims
• Claim – automatic unfair dismissal s100 (1) e) ERA 1996
• ET: Mr G succeeded in his claim. He was dismissed because he had
taken steps to protect his father in what he reasonably believed to be
circumstances of serious and imminent danger.
• Circumstances of danger were growing prevalence of COVID and the
potential significant harm to his father if he contracted the virus.
• Mr G reasonably believed this was a serious and imminent danger,
leading him to raise concerns. Until he raised concerns, he had been
a successful and valued member of staff.
01 July 2021

32. Automatic unfair dismissal claims
Accattatis v Fortuna Group (London) Ltd
• During March and April 2020, Mr A repeatedly asked to work from
home or be placed on furlough. He explained he was uncomfortable
using public transport and working in the office.
• He was told his job could not be done from home and furlough was
not possible, but he could instead take holiday or unpaid leave. He
declined and repeated his request. He was dismissed.
• Mr A had less than 2 years’ service and claimed automatic unfair
dismissal under s100 (1) e) ERA.
01 July 2021

33. Automatic unfair dismissal claims
• ET: Gvt announced in February 2020 that Covid posed a serious and
imminent threat to public health. Mr A expressed concern about
commuting and attending the office. The ET found that Mr A
reasonably believed there were circumstances of serious and
imminent danger.
• Mr A wanted to stay at home and demanded that he be allowed to
work from home or be furloughed. These demands were not
appropriate steps to protect himself from danger.
• Mr A’s claim failed.
01 July 2021

34. Lessons to be learned
• Be aware of potential arguments and claims under s100 ERA 1996.
Also – detriment under s44 ERA 1996.
• The pandemic may not in itself justify a refusal to attend work.
• However, the cases demonstrate the importance of:
—Risk assessments
—Implementing appropriate COVID-19 secure measures – reduce the
transmission risk
—Communicating with employees
—Listening to concerns and considering whether they can be accommodated
• The normal principles of unfair dismissal also continue to apply.
01 July 2021

35. Dismissal for refusal to wear face covering
Kubilius v Kent Foods Limited
• Mr K was a delivery driver. The driver’s handbook required
employees to follow customer instructions regarding PPE at their
sites. Customer required face masks to be worn on site and all visitors
were issued with a face mask on arrival.
• At customer site, Mr K refused to wear a face mask while he was in
the cab of his vehicle. He was told that without one, droplets from
his mouth would land on peoples faces; and that the rules required
him to wear one until he left site.
• Mr K refused and said he was not legally required to wear one.
01 July 2021

36. Dismissal for refusal to wear face covering
• Customer banned Mr K from its site.
• Mr K was dismissed – in refusing to comply with the customer’s
instruction, he had breached the requirements to maintain good
relationships with clients and to co-operate to ensure a safe working
environment.
• ET: the dismissal was fair.
• The employer had a genuine belief that Mr K was guilty of misconduct
having carried out a reasonable investigation. It acted reasonably in
treating the alleged misconduct as a sufficient reason for dismissal.
01 July 2021

37. Quarantine and summer holidays
• Since 17 May 2021, red amber and green lists have been in place for
individuals entering England from overseas.
—Green – no need to quarantine unless Covid test is positive
—Amber – quarantine for 10 days on arrival in England
—Under regular review
—May change with little or no warning
• Consider – what is your plan for dealing with expected or unexpected
periods of quarantine?
01 July 2021

38. Quarantine and summer holidays
• Consider, for example:
—Anticipated quarantine – employee planning to travel to amber list country
—Unexpected quarantine – employee planning to travel to green list country
and this changes at short notice
—Unexpected quarantine – employee does not say that they are planning to
travel to amber country when booking annual leave
—Work from home? Annual leave? Unpaid leave?
—Will your approach differ depending on the circumstances?
—Self isolation and quarantine rules must be complied with.
01 July 2021

39. Fire and rehire – where are we now?
• What is fire and rehire?
• When might it be used by an employer?
• What are the risks?
—Unfair dismissal?
—Wrongful dismissal?
—Collective consultation obligations?
—Reputational damage?
• Gvt asked ACAS to report on the use of fire and rehire.
• Government response.
01 July 2021

40. Equality awareness training
• Employers can be vicariously liable for discrimination or harassment
committed by an employee in the course of employment.
• The employer can have a defence if it can show that it took all
reasonable steps to prevent the employee from doing the
discriminatory act.
• So, is providing equality awareness training enough to establish a
“reasonable steps” defence to a claim of harassment? Not necessarily.
01 July 2021

41. Equality awareness training
Allay (UK) Ltd v Gehlen
• Mr G complained that he had been subject to race harassment by a
colleague, Mr P.
• After investigation, the employer concluded that Mr P had made
racist comments. Mr P accepted he “engaged in some limited so
called “racial banter” with Mr G”. He was required to undertake
further equality and diversity training.
• Mr G issued a claim for race discrimination.
01 July 2021

42. Equality awareness training
• ET: Claim succeeded
• Comments were made by Mr P regularly throughout Mr G’s
employment. Mr G had reported them to a manager who had told
him to report this to HR but did not himself report it further. Other
colleagues had overheard Mr P making comments but did not take
any further action.
• There was an equal opportunity policy and employees had received
equality and awareness training. However, it was 2 years earlier and
was “clearly stale”.
• A reasonable step would have been to refresh the training.
01 July 2021

43. Equality awareness training
• EAT: agreed with the ET.
• Starting point – did the employer take any step or steps to prevent
harassment?
• Then – were there any other reasonable steps that the employer
should have taken?
• In this case – training was no longer effective.
• It would have been a reasonable step to arrange refresher training.
The employer could not rely on the reasonable steps defence.
01 July 2021

44. Thank you
Whilst every effort has been made to ensure the accuracy of this presentation, the
information contained within it is not comprehensive and does not constitute
“advice”. You should not take action without first seeking professional advice.
Scrase Law Limited t/a Scrase Employment Solicitors
www.scraselaw.com
01 July 2021