ENGLAND & WALES Law and Practice Contributed by: James Ross, Paolo Palmigiano, Debbie Cloake, Helen Farr, Debbie Heywood and Louise Popple, Winston Taylor
• There are circumstances where employees with less than two years’ service can claim automatic unfair dismissal. These include if the dismissal is for a reason like pregnancy or other discrimina - tory reason. The ERA2025 will, from 1 January 2027, introduce a further category of automatic unfair dismissal where the reason for dismissal is the employer’s attempt to change certain core contractual terms (eg, a reduction in pay, changes to working hours or pension entitlements) and the employee refused to agree. This historically com - mon practice by employers is known as “fire and rehire”. It should be noted that there is a limited exception where employers can demonstrate the change was necessary to address serious financial difficulties that could not reasonably have been avoided. In the case of redundancies, the following process must be followed. • If an employer proposes to make redundant 20 or more employees within a period of 90 days or less at one establishment (ie, the employees’ local workplace rather than the organisation as a whole), then it must consult collectively with elected employee representatives, as well as notify the Secretary of State. Consultation should start in good time before any redundancies are confirmed. • Any dismissals should not take effect until at least: (a) 30 days after an employer’s consultation obli - gations have been triggered, where between 20 and 99 redundancies are proposed; or (b) 45 days after an employer’s consultation obligations have been triggered, where 100 or more redundancies are proposed. • If an employee is made redundant and they have more than two years’ service, they will qualify for a statutory redundancy payment. 4.5 Employee Representations The following rules apply for collective consultation: • an employer must collectively consult employees if they propose to make redundant 20 or more employees at one establishment within a period of 90 days or less;
• employers must consult with a trade union or employee representative about the redundancy process; and • failure to comply with the legal requirement for collective consultation can result in claims to the employment tribunal. For dismissals taking place on or after 6 April 2026, the ERA2025 has doubled the maximum protective award for failure to com - ply with collective consultation obligations from up to 90 days’ gross pay to up to 180 days’ gross pay for each affected employee. The following rules apply with respect to grievances and disciplinary hearings: • employees and workers have a legal right to be accompanied, by a trade union representative or another employee, to grievance meetings or disciplinary hearings that can result in a disciplinary action against them; • if an employee seeks the right to be accompanied, they must make a reasonable request; • during a hearing, a representative may set out the employee’s case, respond for the employee to any comments, talk to the employee during the hearing or take notes; and • denying an employee the right to be accompanied could amount to a breach of an implied duty of trust and confidence and render the process unfair. Rules apply with respect to TUPE (Transfer of Under - takings (Protection of Employment)), as follows: • prior to a TUPE transfer, both the outgoing and incoming employers must inform and consult with staff representatives to set out any proposed changes and why the transfer is taking place; and • an employer will consult with an employee regard - ing any changes relating to work practices that will take place as part of the transfer. Applicable ICE Regulations (Information and Consul - tation of Employees) are as follows: • where an employer has 50 or more employees in the organisation, the employees have the right to request a formal agreement to be informed and consulted on the operation of the business; and
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