So if we move on our Tesco v Usdaw, this has been a bit of an on-going saga. We've had decisions for and against, and it seems to be just take it in turn really who wins on this one. And it's set to continue. So can you remind us what's been going on with this case so far?

Seamus: Yeah. Well, this case is really in and around this aspect of fire and rehire. Fire and rehire is an accepted position that's contained in a number of policies and procedures and codes of conduct within Labour Relations Agency as well. There are some aspects of fire and rehire there.

But essentially, in 2007, we're going back a long time here, Tesco had offered some of their employees an incentive, which was called a retained pay. And what was happening at the time was that there was movement around alternative sites. This was an incentive that was provided.

And it was followed up as well by a collective agreement in 2010. So it wasn't just an agreement. It was a collective agreement in 2010 that said this entitlement to retained pay became incorporated into the individuals' contracts of employment.

And it's as much as up to 40% of some of the employees' salary. So it's a significant amount of money that they receive through this retained pay.

And the retained pay was a retention incentive, as I said, and it was to remain a permanent feature of the contract. And it was to be guaranteed for life. Those were the two points that were contained in writing.

But then Tesco wanted to bring about an end to retained pay and . . .

Christine: I wonder why.

Seamus:  I think the position and threat of the retention of staff had alleviated. They were paying a significant . . . As I said, it was up to almost 40% in some cases of the employees' pay.

And the basics were that the . . . What they said was that in the absence of the employees expressly agreeing to the exclusion of the retained pay clause from their contract, that they intended to terminate the contract and offer re-engagement on different terms. And whenever that happened, then Usdaw went to the High Court. In February 2022, they successfully applied to the High Court for an injunction preventing Tesco from doing that.

And what happened was the High Court granted the injunction for 42 employees in total. What it declared was that the effective contracts were subject to an implied term, which prevented Tesco from exercising its contractual right to terminate for the purposes of removing an employee's right to retained pay.

And the High Court found that, as the parties had agreed, the payment was permanent and guaranteed for life. Tesco wasn't entitled to serve notice on the contract when its sole purpose was simply to remove the benefit of the retained pay.

But the case went to the Court of Appeal, and the Court of Appeal has had a very different view in relation to that.

Now, it is a difficult one to get your head around, Christine. We talked about this briefly before we came on. And it is difficult because when you have words written into the contract like "guaranteed for life" and "permanent", as a lawyer, you'd be slightly concerned about what that might mean outside of that.

There is a case law around perpetuity and all that sort of stuff. But the Court of Appeal essentially said that it was unable to accept the phrases of "permanent" and "guaranteed for life", that it couldn't accept that that showed a mutual intention on behalf of both of the parties for the right of retained pay, and that that would continue for as long as the contract was in place.

Christine: I kind of see of it. I don't want to argue with the judge, but . . .

Seamus:  Yeah. What they said was essentially there was a lack of clarity as to what both parties meant by "permanent". And in light of the finding, then, the court also concluded that it could not imply a term into the contract to prevent the employer serving notice even if the circumstances were to simply remove the aspect of retained pay.

So, ultimately, the Court of Appeals removed the injunction preventing Tesco from dismissing the employees. Usdaw have made it very clear that they are intending the appeal to the Court of Appeal. I think Thompsons in England are the solicitors on record for the trade union. And they have expressed this concern around when the contract has been clear, how there can be any ambiguity about it.

So certainly an interesting one. But I think the issues are in and around the fact that we've had fire and rehire for a long time. It is always the point of last resort. And there is usually that very important point of consulting with an employee in relation to any amendment of the terms and conditions.

You would imagine that for any employee whose employer approaches them and says, "I'm going to take 40% of your salary away from you", that they're not going to agree to that and it is always going end up . . .

But usually you'll get something along the lines of what they take away, you'll get back in some shape or form. It'll be dressed up as something else. Maybe you'll not get the 40%, but there will be that aspect of it.

But the clear position, I think, that the Court of Appeal is saying they're protecting that aspect of fire and rehire. And I think that we'll need to see then what the Supreme Court's position is going to be.

Christine: Yeah. I mean, I can appreciate that there are circumstances where you do need to fire and rehire, but I am struggling to see how that is not clear. We lawyers love tinkering with language and playing about with it, and it's what gets us into bother a lot of the time. But that, to me, is very clear. And if you can't say that in a contract, then that's what it means. I think we're going down kind of a dangerous road. So I think it's certainly one to keep an eye on.

What can we take away from this latest decision, Seamus?

Seamus: The other aspect then, Christine, is back to this sort of theme of this morning about reputational damage. On face value, from what I have read and the opinions that I have come across, people do see this as a very unfair step of Tesco in relation to the fact that . . . It's almost viewed if we don't get our way, they'll just simply . . . "We'll just terminate them and hand you a new contract, and there's nothing that you can do about that". And it's that reputational damage.

Tesco is a significant employer in Northern Ireland. And the reputational damage of people going to work for them or that aspect, I think that that backlash and concerns are the reason . . . I think that's the issue.

But saying that, I think the points of fire and rehire are going to remain with us, but it does seem to me that this is a difficult one to get the head around certainly.

I think, just on a broader basis, it does demonstrate the perils sometimes of fire and rehire, particularly whenever you're just doing it in relation to the detriment of the employee. And that seems to be the underlying theme of this. It was pushed in court that the only reason that Tesco wanted to do this was simply to remove the aspect of retained pay and that was it.

Christine: We've actually got a . . .

Seamus:  It doesn't leave you looking too good.

Christine:  No. Exactly. You don't want to end up with the PR of P&O and stuff, which now has become the watchword for how not to go about making redundancies, etc.

We've got a question in on fire and rehire:

So what are the circumstances where fire and rehire are justified?

Seamus: Well, essentially, where you can look at it is where you have exhausted the position throughout consultation. And where there is a trade union involved, you should be making sure that you are fully, properly, openly, and transparently consulting in relation to any aspects.

And ultimately, as well, there is an aspect where the idea of firing has to be justifiable. So the employer has to be clear about the reasons that it needs to make and take those steps. And that should form part of the consultation process. That should be the opening part that's given to the employees of why those steps are necessary.

On the Tesco case, it just seems to be a cost-saving exercise. "We needed it for a bit. Now we don't need it. Now we want to remove it". But there are genuine circumstances where . . .

There's an Asda case. I can't remember precisely the name of the case, but there is an Asda case where they also sought to fire and rehire, and there were justifiable circumstances in relation to it.

And it can be where the circumstances were maybe that part of the contract is no longer possible, or just simply that it's no longer viable and there's a clear business case for it.

But I think from a presentational purpose or presentational stance, you should always come at it from a clear explanation as to why it's happening. And if you can, offer alternatives to the employees also.

Christine: Yeah, and I think if it is something you're considering, it is absolutely essential to get legal advice and absolutely essential to properly document every single stage. You're always thinking in the back of your mind, "What is a tribunal going to think about this?" So I wouldn't be doing it without good legal advice and someone holding your hand the whole way, because it is an absolute line of last resort really, isn't it?

Seamus: Yes. Absolutely.

Christine:  And it's not to be taken lightly. Yeah, thank you very much for that, Seamus.