The Court of Appeal overturned the “fire and re-hire” injunction, finding that there was nothing in the express contractual provisions preventing Tesco from giving the notice to terminate employment in the usual way.
In February 2022, the High Court granted an injunction against Tesco preventing the dismissal and re-engagement (‘fire and rehire’) of employees in an attempt to remove a contractual entitlement to enhanced payment terms (“Retained Pay”) (see here for our previous legal opinion on this). By way of reminder, the Retained Pay was stated to be ‘permanent’ for as long as the employees remained in their current role. However, in 2021, Tesco offered employees an advanced lump sum payment of 18 months’ Retained Pay in return for forfeiting their entitlement. Employees who did not agree were to be dismissed and re-engaged on terms without Retained Pay.
The Court of Appeal has now overturned this decision, finding that there was nothing in the express contractual provisions which would prevent Tesco from giving notice to terminate employment in the usual way. The CoA went on to consider the wider context of the discussions and, in particular, whether pre-contractual negotiations could be relied upon to shed light on the intended meaning of ‘permanent’. However, it took a different view to the High Court, finding that there was no ‘mutual intention’ that contracts would continue for life, until normal retirement age, or until site closure; and no mutual intention to limit the circumstances in which Tesco could serve notice. As a result, the contractual words needed to be given their ordinary meaning – namely that the employer could terminate the contract in the usual way, and that the rights to Retained Pay would subsist only for as long as that contract did.
In addition, the CoA found that terms could not be implied into the contract because it was far from clear exactly what terms would be implied. For similar reasons, arguments relating to estoppel also failed – there was no clear and unequivocal promise which would fetter the contractual right to terminate.
Lastly, the CoA held that issuing of the injunction was itself inappropriate. Whilst there have been employment cases in which injunctions have been issued, these have tended to relate to obligations to follow (or not to follow) a particular contractual process. The CoA flagged that it was not aware of any other case where a court had issued a final injunction preventing a private sector employer from dismissing an employee for an indefinite period of time.
Whilst the issue of ‘fire and rehire’ is not going away any time soon - a new statutory Code of Practice has been proposed to ‘clamp down on controversial tactics’ – this decision will still be welcomed by employers as reducing the risk of future threats of injunctions.
In this session, we examined the legal framework around grant funded collaborations and discussed the key risks to be aware of, including IP ownership and compliance with grant terms.
Official statistics show that 15,336 claims which included a complaint of age discrimination were received at the Employment Tribunals between March 2020 and March 2021.
The outcome of the Employment Tribunal claim brought by Gulnaz Raja against Starling Bank Limited (1) (Starling), and Matthew Newman (2) was reported last month.
In the Autumn Statement delivered on 17 November, rises to the National Living Wage and National Minimum Wage rates were announced, to take effect from 1 April 2023.
The World Cup kicks off in Qatar on Sunday 20 November 2022, with the final taking place on Sunday 18 December 2022. Undoubtedly, this is a huge sporting event, and many employees will be keen to show their support for their favourite teams. However, due to the time difference, start times for the matches are between 10 a.m. and 7 p.m. UK time, which could have an impact on employers if employees who wish to watch the matches are scheduled to work.
Settlement agreements are commonplace in an employment context and are ordinarily used to provide the parties to the agreement with certainty following the conclusion of an employment relationship.
National law firm Browne Jacobson has advised long standing retail client, Wilko on the sale and leaseback of its Nottinghamshire distribution centre in Worksop to logistics specialist DHL for £48m.
Law firm Browne Jacobson is pleased to announce that Suzanne Harlow has been appointed Non-Executive Director of its Retail, Consumer & Logistics sector.
Earlier in the year a number of fashion retailers, boldly announced the introduction of a charging fee for returning any product purchased via their online store. Yet, despite this commercial, and perhaps somewhat controversial decision, at least one major fashion giant that adopted this approach has recorded ‘historic highs’ in its September profits. Browne Jacobson partner, Cat Driscoll who heads up the firm’s commercial team in Manchester and is also head of its Fashion & Beauty sector discusses whether this change has put the average consumer off and whether the days of free returns are long gone.
Every AI will have its own terms of use. DALL·E 2’s Terms of Use dated 3 November 2022 specify that as between a user and Open AI, a user owns their prompts and uploads. Open AI also assigns to the user all rights in any images generated by DALL·E 2 for that user (subject to the user complying with those Terms of Use, and to a licence to use inputs and output to develop and improve the services).
This article is the second in a series to help firms take a practical approach to complying with the ‘cross-cutting rules’ within the new ‘Consumer Duty’ (CD) framework. The article summarises what it seems the Financial Conduct Authority (FCA) is seeking to achieve from the applicable rules (section 2 below) and potential complications arising from legal considerations (section 3).
Where an employee appeals against their dismissal under a contractual appeal procedure and their appeal is successful, reinstatement to their previous role is automatic and does not require approval or agreement from the employee.
Settlement agreements in an employment context are ordinarily used to provide both parties with certainty following the conclusion of an employment relationship – but what happens when there is alleged discrimination after entering into a settlement agreement?
The fashion industry has a mountain to climb when it comes to sustainability. More than 8% of greenhouse gas emissions come from the apparel and footwear industries, and approaching three-fifths of all clothing ends up in incinerators or landfill within a year of being made.
In a judgment handed down yesterday the Supreme Court has affirmed that a so called “creditor duty” exists for directors such that in some circumstances company directors are required to act in accordance with, or to consider the interests of creditors. Those circumstances potentially arise when a company is insolvent or where there is a “probability” of an insolvency. We explore below the “trigger” for such a test to apply and its implications.
