2024 continues to be a landmark year for employment law. Recently, we wrote about the Labour Government’s major proposals for employment reform, and earlier this month we saw two separate decisions from the UK’s most senior court on fire and rehire and employment status. In both decisions, the Supreme Court considered the impact of documents outside of an employment contract on an employer’s powers and relationships.

In this blog, we set out a brief explanation of those two decisions and the sort of ancillary documents produced by employers which have the potential to have unintended consequences.

Historic promises preventing dismissal

In Tesco Stores Ltd -v- USDAW, the Supreme Court considered an attempt by Tesco to dismiss a number of distribution centre workers and re-engage them on terms which were more favourable to the company.

During a previous reorganisation, to avoid losing experienced workers, Tesco agreed with the relevant trade union that those workers would receive a monthly “retained pay” payment, in addition to their standard pay. By 2021, this amounted to over 30 per cent of the wages of the relevant workers. Tesco wanted to bring this retained pay arrangement to an end and, following an unsuccessful negotiation, gave the workers notice they would be dismissed in accordance with the notice period in their contracts. They were offered re-engagement on new terms which excluded retained pay.

Unusually, the workers applied for and were granted an injunction...

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