The work of Professor Alan Bogg focuses on labour, employment, and work law. He works closely with trade unions and the lawyers that advise them and has expert knowledge on the issue of 'fire and rehire'.

'Fire and rehire' describes a practice whereby an employer dismisses employees and then re-engages them on new contracts with worse terms and conditions.

At the P&O Parliamentary Hearing in March, Professor Bogg described P&Os decision to sack seafarers with no notice and take on agency staff as “fire and rehire on steroids,” indicating:

“Failure to deal with fire and rehire has set a broader tone about the seriousness with which parliament takes enforcement - and that encourages a culture of impunity.”

Despite P&O’s CEO Peter Hebblethwaite admitting the organisation did indeed break the law, the government conceded it was unclear whether there could be a criminal prosecution. The enforcement of the consultation procedures was up to ‘the individuals concerned’ and their trade union to take the firm to a tribunal in private enforcement action.

So where did P&O break the law? One area of contention was its interpretation of the public notification duty under the Trade Union and Labour Relations (Consolidation) Act 1992 – this requires companies to give minimum notice of any intention to bring large-scale redundancies to the Secretary of State or the relevant authority in the flag state.

P&O’s position was that because its ferry fleet was ‘flagged’ overseas, no criminal offence had been committed. There was no obligation to inform UK authorities - and therefore there was no criminal offence. 

Speaking to Sky News, Professor Bogg highlighted that P&O was using a quirk in the 2018 amendment to the 1992 Act that originated from an EU directive intended to improve the conditions of seafarers.

"The 2018 amendment was badly done, but I don't think for a moment there was any intention to remove or limit the scope of the criminal offence of failing to inform. It would have been perverse in the extreme to reduce their protection.

“In my view the amendment is still subject to the offence of failing to notify, and it doesn't mean P&O should be treated as if they are off the hook."

As P&O ferries prepares to get back to business, the Government has set out a series of measures to plug loopholes in UK employment law exposed by P&O Ferries’ decision to sack almost eight hundred workers without any formal consultation.

This includes establishing ‘minimum wage corridors’ on ferry routes between the UK and other countries – and a new statutory code to clamp down on employers using ‘fire and rehire’ and failing to engage in meaningful consultations with staff.

The code would include a directive for courts to take this into account when considering cases of unfair dismissal, applying an uplift worth 25 per cent of an employee’s compensation if employers failed to comply with the code.

Responding in the Financial Times, Professor Bogg commented: “a 25% uplift to compensation would not have a strong deterrent effect because awards for unfair dismissal tended to be low in cases involving redundancies.”

At a recent Law at Work webinar on the issue, Professor Bogg expressed both disappointment at the failure to take political responsibility to address well known and documented enforcement failures in the legal framework – and hope that things had to now change. This would require the introduction of punitive damages for calculated breaches of fundamental legal duties, as had happened in P&O itself.

“There is a long-standing recognition of the enforcement problem with a Director of Labour Market Enforcement introduced in 2016. So, what I hope happens now is that the legacy of P&O will be the introduction of a Labour Market Enforcement Act.”