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The Employment Rights Bill makes major strides towards ending ‘fire and rehire’. That’s the strategy where an employer, unable to secure agreement to new contract terms, dismisses staff and then offers to rehire them on the revised terms (or hires new people on those terms instead).
Until now, that approach has been lawful if there’s a genuine business reason and the process is fair (though it could still trigger unfair dismissal claims if mishandled). Some employers have used it as a strong-arm tactic to drive through changes to pay, hours or other conditions.
The Bill’s initial proposals made using fire and rehire almost impossible – it could only be used when the business was in significant financial distress. Responding to business concerns, Government amendments, published in the summer, soften that position. The new position on fire and rehire can be summarised as follows:
1. Dismissal for a restricted variation – automatically unfair unless justified by serious financial difficulties
Dismissal for fire and rehire will be automatically unfair (unless justified – see below) where the proposed variation in the contract is a ‘restricted variation’. A restricted variation is:
• a reduction in pay;• a variation to pensions;• a variation in hours of work;• a variation in timing or duration of shifts (which meet conditions specified by the Secretary of State);• a reduction in entitlement to time off;• the addition of a variations clause; or • any other variation specified in regulations.
Dismissing someone for refusing to accept a restricted variation would count as automatically unfair – unless the employer can meet a very high threshold to justify it.
What is that threshold?
The employer would need to show:
◠it had evidence of serious financial difficulties affecting (or likely to affect) business viability;◠the proposed contract changes were intended to address or mitigate those financial problems; and◠it had no alternative – the changes were unavoidable to keep the business afloat.
All three conditions must be met. And even then, a tribunal will still closely examine whether the process was fair — including whether the employer genuinely consulted with staff or any recognised union, and whether alternatives to dismissal (or any incentives to accept the changes) were seriously explored.
Put simply: unless the business is in very serious financial trouble and has no choice but to change staff contracts to survive, dismissal and rehire to make a restricted variation will be extremely difficult. If you do, you’ll face automatic unfair dismissal claims. The aim is to stamp out what the government calls “unscrupulous fire and rehire tactics†– using the threat of job loss to strong-arm people into worse terms.
2. Dismissal for an unrestricted variation – potentially fair but subject to new statutory fairness ‘checklist’
There are some variations that an employer might want to make which are not restricted variations. Changing location and amending an employee’s contractual duties are two good examples. If an employer wants to fire and rehire to make an unrestricted variation, then the dismissal would be potentially fair. Usually, the issue of fairness would then be left to the reasonableness test in s98(4) Employment Rights Act 1996. However, the Bill proposes a gloss on this by giving tribunals a list of matters it must consider when deciding the fairness of a dismissal for refusing to agree to a variation that is not a restricted variation.
The factors comprise:
• the reason for the variation• any consultation carried out by the employer about varying the employee’s contract of employment• anything offered in return for agreeing to the variation• any additional matters specified in regulations.3. Dismissal of employees to replace with people who are not employees – automatically unfair unless justified by serious financial difficulties
If an employer wants to dismiss an employee for the principal reason of replacing them with a person who is not an employee (as happened, for example, with P&O who replaced employees with agency workers), then such a dismissal will be automatically unfair if the replacement is carrying out substantially the same activities as the employee, and the statutory defence of being in serious financial difficulties does not apply.
The words “redundancy†and “restructuring†carry very different connotations. Redundancy often implies cutbacks and job loss. Restructuring, on the other hand, sounds strategic and forward-looking.
It’s no surprise then that employers often refer to redundancies as “restructuringâ€. While HR plays a key role in delivering messaging sensitively, it’s essential not to lose sight of the legal distinctions.
Redundancy or SOSR?
Redundancy is one of the five potentially fair reasons for dismissal. Under section 139(1)(b) of the Employment Rights Act 1996, it applies where there’s a reduced need for employees to do a particular kind of work.
In contrast, “some other substantial reason†(SOSR) might apply where a business restructure requires changes to terms and conditions. If employees refuse the new terms, they may be dismissed and offered re-engagement.
Why the label matters
While the consultation process may look similar for both (engaging employees, considering alternatives, fairly selecting), the key difference lies in termination payments.
A redundancy dismissal typically entitles the employee to a statutory redundancy payment, whereas SOSR does not – just notice pay.
But don’t assume “restructure†means SOSR. In Packman v Fauchon, an employee’s hours were reduced due to a drop in work – even though the headcount didn’t change, the dismissal was still found to be a redundancy in law.
Top tips for HR:
• Even if no roles are lost, a reduced need for work may still be redundancy.• Mislabelling a redundancy as a restructure can risk unpaid redundancy claims.• Collective consultation rules apply for both SOSR and redundancy if 20+ dismissals are proposed within 90 days.• Always align your documentation and rationale with the actual legal basis for dismissal.
Anonymity can encourage openness and honesty in the workplace – especially when it comes to whistleblowing, misconduct, or harassment. But while it has its benefits, anonymous complaints present challenges that HR must handle carefully.
Anonymity vs. Confidentiality
Anonymity means the complainant’s identity is completely unknown, unlike confidentiality, where it is known but not widely shared. Anonymous reporting tools can help surface serious issues that might otherwise go unreported, particularly where employees fear retaliation.
Risks to investigations
While anonymity may encourage disclosure, it can hinder effective investigation. Without knowing who made the allegation, it’s harder to clarify facts or test reliability. Investigators should focus on verifiable evidence – like dates, documents or CCTV – and always record anonymous witness statements in detail.
Disciplinary risk
For a disciplinary process to be fair, the accused must understand and respond to the allegations. If witness or complainant identities are hidden, this right may be compromised. Employers should only grant anonymity where there is a genuine risk of harm or reprisal and no other way to gather evidence.
In Acas v Woods, a dismissal was ruled unfair due to misuse of anonymised evidence. The tribunal criticised the blanket approach to anonymity, lack of witness fear, and failure to allow the accused a fair response.
HR Best Practice
• Seek corroborating evidence where possible.• Avoid guaranteeing anonymity without good reason.• Record anonymous complaints fully and assess their credibility.• Follow Acas guidance: explore reluctance, provide reassurance, and redact only where necessary.
Handled correctly, anonymity can be a helpful tool – but it must never come at the expense of fairness.
Non-disclosure agreements (NDAs) are legal contracts or provisions of legal contracts that place confidentiality requirements on another in respect of certain information, usually for something of value or payment. They are sometimes referred to as ‘gagging clauses’. In an employment context, they are often used to maintain the confidentiality of settlement terms (or the events leading up to such terms being agreed). The use of NDAs has come under increasing scrutiny in recent years, with the #MeToo movement and high-profile examples (such as Mohamed Al Fayed and Harrods) of them being used to cover-up misconduct. With their use being restricted in new areas with effect from 1st October 2025, we summarise the current legal position regarding NDAs, and where it is headed.
The current position
Currently NDAs will be void if they seek to:
• prevent an individual from reporting a crime to the police.• prevent a worker from making certain protected disclosures under whistleblowing laws.• prevent a member of staff, student or visiting speaker in a higher-education setting from disclosing sexual abuse, sexual harassment or sexual misconduct, or any other bullying or harassment.
Changes from 1st October 2025
On 1st October 2025, new restrictions on the use of confidentiality provisions under the Victims and Prisoners Act 2024 came into force. These make clear in statute that non-disclosure agreements cannot be enforced insofar as they seek to prevent victims from reporting crime to the police. The changes also extend these protections to certain other disclosures, including those necessary for victims to access confidential advice and support needed to cope and recover from the impact of crime.
Disclosures to any of these extended categories of person will not be a ‘permitted disclosure’ if the primary purpose of the disclosure is for making the information public.
HR and legal teams need to make sure that their standard settlement wording is amended to carve out these additional disclosures.
The Working Time Regulations 1998 provide the legal framework for working hours and rest breaks. They contain special rules for night workers. HR professionals must carefully manage night work arrangements. Here’s what you need to know.
Who is a Night Worker?
Under the Working Time Regulations 1998, a night worker is someone who:
• works at least 3 hours during ‘night-time’ as a normal course (typically one in three shifts); and• works during the period between 11pm and 6am, unless an alternative 7-hour window (e.g. 10pm–5am) is agreed.
What are the limits?
Employers must ensure adult night workers do not work more than 8 hours in a 24-hour period, averaged over 17 weeks. This includes overtime. If the work involves special hazards or strain, the 8-hour cap applies per shift with no averaging.
Workers can’t opt out of night work limits individually, but employers may vary them through a collective or workforce agreement.
These limits apply alongside usual working time protections, such as rest breaks and weekly working hour limits.
Exceptions to the rules
Some roles are exempt from night work limits, including:
• Emergency services, police, armed forces• Domestic workers in private homes• Roles with unmeasured working time (e.g. executives)• Work requiring 24/7 staffing or urgent cover (e.g. agriculture, transport, hospitality
Young workers
Special restrictions apply to workers aged 15–18:
• They must not work between 10pm and 6am (or 11pm and 7am, if their contract allows work after 10pm).• Limited exceptions apply, such as for supervised night work in hospitals or hospitality – only where essential and not harmful to education or wellbeing.• Employers must complete a risk assessment before assigning young workers to night duties.
HR teams should:
• regularly review night shift patterns for compliance.• conduct risk assessments, especially for hazardous roles and young workers.• monitor total working hours across multiple roles.
A proactive and compliant approach protects both employees and the business – day or night.