Fire and rehire in 2025: how to use the Code and Defend Unfair Dismissal SOSR
- William Slivinsky
- Sep 23
- 6 min read
Fire and rehire understanding is a key to avoiding SOSR unfair dismissal or win the case when it happens to you. Since July 2024, the Statutory Code of Practice on fire and rehire (Dismissal & Re-engagement) sets out what “good” looks like: early information (not at the last minute), meaningful consultation (with an open mind, not a done deal), and a genuine review of alternatives (temporary measures, phased changes, redeployment) before anyone reaches for dismissal.
Only then — and only as a last resort — should re-engagement on new terms even be on the table. From 20 January 2025, tribunals can uplift compensation by up to 25% if an employer unreasonably fails to follow the Code. Translation: the paperwork and process now carry real financial consequences. In this guide we show how to use the Code step-by-step, frame the right SOSR test (Garside/Catamaran), and turn majority-acceptance “headcount” into context — not a shortcut to fairness.
Why? Because more and more cases where you refuse the new terms lead to unfair dismissal, where the employer relies on SOSR.
Fire and rehire in 2025 - What you’ll learn in this article
When the Code applies & what you can demand (your four leverage points).
Using the Code inside the SOSR unfair-dismissal test (the correct framing).
Pathways & signing new terms (fire-and-rehire vs imposed change; keeping your claim alive).
Constructive dismissal vs working under protest (when to resign—and when not to).
When the Code applies & what you can demand
The Code applies when your employer is considering changing contractual terms and might fire and rehire (or threaten to). You can demand:
Early information (what is changing; who’s affected; and why in plain-English explaining the business case; timing; alternatives already examined).
Meaningful consultation (for as long as reasonably possible; open minded; Q&A logged; including those on sick/family leave).
Exploration of alternatives (costed, recorded options with reasons if rejected).
“Last resort” only (no using dismissal as early leverage; employers need to seek ACAS advice before raising dismissal and you can ask if they have).
Important note: In an unfair setting, your employer may use different tactics on paper, all to the letter of the code, and differently during informal discussions. If you hear a proposal of fire and rehire in such circumstances, note it down and raise it immediately.
Using the Code inside the SOSR unfair-dismissal test
If you have been dismissed, your employer will most definitely rely on SOSR. Your claim will be assessed under ERA s.98(4): asking; did the employer act reasonably in dismissing for SOSR in all the circumstances? The Code is for measuring those circumstances. Late/thin information, box-ticking consultation, ignored alternatives, early dismissal threats, and lack of “last resort” → all weigh against reasonableness. Do not argue “ it was reasonable for me to refuse.” Do argue: “The employer’s decision to dismiss fell outside the band of reasonable responses given the Code failures and my individual impact.”
“Most colleagues accepted” the new terms is only a factor, never decisive. It doesn’t cure poor process or disproportionate impact on you (childcare, disability, affordability).
Pathways & signing new terms (keeping your claim alive)
True fire and rehire means in fact dismissal: Even if you have accepted re-engagement you can still bring unfair dismissal about the old contract’s termination. Watch your EDT (last day of the old contract/notice) for time limits.
Simply Imposed changes with no re-engagement means no dismissal and no fire and rehire: There’s no unfair dismissal because there’s no dismissal; you may want to proceed via constructive dismissal (if you resign because not accepting the chage) or continue your work under protest claiming unlawful deduction/breach of contract.
Constructive dismissal vs working under protest
Constructive unfair dismissal: resign promptly in response to a fundamental breach (high-risk; you must prove breach and avoid affirming the contract).
Work under protest (safer for income): reject the variation in writing, keep working, and claim the shortfall / breach of contract—especially for unilateral pay cuts.
Templates for each key stage (copy-paste)
A) When the change is proposed by your employer, you kicking-off: demand the early information (Day 0) put in writing:
Subject: Statutory Code – request for early information to enable meaningful consultation
Please provide, as early as reasonably possible, the information required by the Statutory Code of Practice on Dismissal & Re-engagement so consultation can be meaningful: the exact contractual changes and who is affected; the business reasons (plain-English summary, with any figures you rely on); the timelines; and the alternatives already considered and your assessment of them.I’ll engage constructively once I have this pack, in line with the Code.
If the pack is thin/late, reply that meaningful consultation isn’t possible without the missing items (this supports uplift and unfair-dismissal arguments).
B) Consultation: questions + counter-proposals (Weeks 1–4+)
Subject: Consultation under Statutory Code – questions and counter-proposals
Thank you for opening consultation. Please treat the following as questions and counter-proposals under the Statutory Code:Questions; What specific savings/operational outcomes are targeted and by when?; How were individual impacts assessed (childcare, disability, affordability)?
Counter-proposals; Temporary/phase-in of changes with a fixed review date; Redeployment/role redesign to meet the business need; Overtime/recruitment freeze before base-pay cuts.Please provide written reasons for accepting/rejecting each proposal; I’ll consider revisions in good faith.
C) If they threaten dismissal too early
Subject: Early reference to dismissal – compliance with the Statutory Code
I’m concerned that dismissal & re-engagement has been raised too early. The Statutory Code cautions against raising dismissal unreasonably early or using it as pressure, and expects employers to seek ACAS advice before raising it. Please confirm you’re following those steps and that consultation will continue with an open mind.
D) Grievance (box-ticking consultation / alternatives ignored)
Subject: Formal grievance – failure to comply with Statutory Code (Dismissal & Re-engagement)
I raise a formal grievance that the company is not complying with the Statutory Code:• Early information: missing/late (list).• Meaningful consultation: closed-minded; inadequate Q&A; staff on sick/family leave overlooked.• Alternatives: failure to cost/record mine; no reasoned rejection.• Threats: dismissal referenced unreasonably early as leverage.The Code requires good-faith consultation for as long as reasonably possible, with dismissal only as a last resort. Please confirm corrective steps and a timetable. I reserve the right to seek a 25% uplift if dismissal occurs.
E) If they dismiss and re-engage: appeal (set up the uplift)
Subject: Appeal – unfair dismissal (SOSR) & Statutory Code breaches
I appeal my dismissal. The correct test is whether the employer acted reasonably in dismissing for SOSR (ERA s.98(4)), not whether I was reasonable to refuse. Your process was unreasonable: inadequate early information, closed-minded consultation, alternatives not appraised, dismissal raised too early, and not a genuine last resort. I complied reasonably with the Code. I will seek an uplift up to 25% (for dismissals after 20 Jan 2025). Please confirm an appeal hearing and disclose the consultation record and options appraisal.
F) If you accept re-engagement: reserve rights (keep income, keep claim)
Subject: Acceptance of re-engagement—rights reserved
I accept re-engagement on the terms offered so I can continue working. This acceptance is without prejudice to my position that termination of my previous contract was unfair. I reserve all rights to pursue an unfair dismissal claim and to rely on your Code failures. (My EDT remains the end date of my previous contract.)
Timeline you can follow
Week 0: Send the early-information request; log gaps.
Weeks 1–4+: Submit Q&A + counter-proposals; demand written reasons; keep a consultation diary.
Any time: If dismissal is waved around early, send the early-threats email; if stonewalled, lodge the grievance.
If dismissed: File your appeal. Start Acas Early Conciliation promptly; ET1 is typically 3 months minus 1 day from the EDT (EC pauses the clock while it runs).
Evidence checklist (what to capture to win)
Employer info pack + dates; list of missing items you flagged.
Your questions and their answers (or silence).
Your counter-proposals and their written reasons for rejection.
Any early threats of dismissal; your reply invoking the Code/ACAS.
Individual impact: childcare timetable (possible indirect sex discrimination), budget of priority bills, medical/adjustment notes.
Final decision/appeal letters showing whether it was truly last resort.
Quick FAQs
If I sign the new contract, do I lose my claim?No. If you were dismissed and re-engaged, the unfair dismissal claim is about the dismissal of the old contract. Signing preserves income; reserve rights in writing and watch the EDT and time limits.
Does the Code create a free-standing claim?No—but tribunals must consider it and can adjust awards by up to ±25% for unreasonable non-compliance (uplifts for dismissals from 20 Jan 2025).
Constructive dismissal or work under protest?Constructive = resign on a fundamental breach (riskier). Working under protest lets you claim the shortfall while staying employed.
Need help with your specific situation?
Drop me the basics (what’s changing, key dates, what info you’ve had so far) and I’ll turn the templates above into bespoke letters for you within the day—plus a one-page timeline so you don’t miss any deadlines.
Comments