Fire and Re-Hire – USDAW -v- Tesco
Unhappily, the Courts have overturned the first instance decision of the High Court which granted an injunction in favour of Tesco workers, prohibiting Tesco from taking a ‘fire and re-hire’ approach to escape from a ‘permanent’ pay arrangement that it negotiated with their Trade Union, USDAW.
The decision is not altogether surprising. The orthodox approach in these cases has always tended towards a rather technical and legal analysis according to the law of contract.
Courts have always been reluctant to grant injunctions that in effect compel either side of the employment bargain to continue with the employment relationship.
However, the facts of the case were exceptional, too: when it suited the supermarket, they agreed to afford workers improved pay conditions (to retain staff, which they were struggling to do) – but just as soon as the landscape improved for them, they sought in effect to get out of the obligations they had willingly incurred, by the ‘fire and re-hire’ approach. The Union argued – persuasively in our opinion – that these were exactly the sort of circumstances in which an Employer can and should be held to the bargain that it struck when it suited it.
The Court of Appeal unfortunately has disagreed and we return therefore to a position where ‘fire and re-hire’ remains a tool of choice for some employers – despite the apparent distaste for it on both sides of the political divide.
