Retail Appointment July 2017 TRAP_July 2017_DigitalEdition | Page 7
anges
his is a very common problem and
can be the cause of many disputes.
Indeed, many high profile changes
made by employers hit the news when it
affects a large group of high profile
people, such as the junior doctors. So,
can employers unilaterally change your
contract?
T
The short answer is — maybe.
Many employment
contracts include clauses
that say the employer may
alter the terms of the
contract.
In its widest form it will say “at its discre-
tion”. Normally it would specify the areas
that it may change and perhaps set out
reasons or circumstances that might have
to prevail before such changes are made.
Sometimes contracts are changed unilat-
erally without the provision for such a
change in the contract; and we should
look at this first.
If your employer, say for example, alters
the hours of your contract from 9am-6pm
to 10am-7pm without your consent, what
can you do about it? Let us assume that
there is no provision in the contract for
such a change. If you want to do some-
thing about it, you should do it quickly. If
you start working those hours and do not
object, you will be deemed to have ac-
cepted the new contract and you are
stuck with it.
So the first thing to do is to write to your
employer and tell them you do not agree
to the change of terms. Don’t be con-
frontational. Give good reasons as to why
you don’t want the change and carry on
working your existing hours. It will be up
to the employer then to counter offer you
with some sort of compromise that is ac-
ceptable to you. Perhaps they will offer
more money. If the employer insists, then
they will have to dismiss you if you don’t
change the hours you are working — and
that would be an unfair dismissal. Do bear
in mind that your right to claim for an un-
fair dismissal does not have effect until
you have completed two years’ service.
If the employer does have the right to vary
the contract then your remedy is not quite
as clear cut. Whatever the contract says,
no employer has the absolute right to
change your contract too dramatically;
even if, at face value, the contract sug-
gests they can.
There is a common law
duty of employers not to
breach your trust and
confidence.
If an employer wants to cut your salary
from £40k to £20k and still work the same
hours, regardless of the provision to allow
change, this would be a breach of trust
and confidence and you could refuse to
accept it. Your remedy again would be to
either get dismissed or to resign and claim
Constructive Dismissal.
Constructive Dismissal occurs when an
employer does not actually terminate your
contract but creates an environment or
working conditions or some other factor
that means there is a complete break-
down in trust and confidence. In these cir-
cumstances the employee should resign
and leave immediately. The remedy then
is to claim against the empl oyer in the
Employment Tribunals for unfair dismissal.
Again though, you only acquire this right
after 24 months’ service.
Extreme changes of contract like this are
rare and the stance you take will depend
on your own bargaining position. Do bear
in mind that if the employer can prove that
the business cannot survive without the
changes it requires, it can make you re-
dundant if it can prove that the changes
are essential. Sadly, for the employee, un-
less you have more than two years’
service, it may mean you have to accept
the terms or get fired. It may even mean
this after two years’ service, but at least
then you will get redundancy.
As with any sort of conflict the same rules
apply. Try to reason with your employer
first. See if there is some common ground
that avoids a dispute. After all, even if you
prove you’re right, you will have to work
for this employer going forward. As the
great man said (Churchill), “Jaw Jaw is
better than War War.” A compromise that
satisfies both sides is far better than
scoring points.
Peter Burgess, MD of Retail Human Resources
plc
Readers are welcome to respond to these articles by
visiting our website at
www.retailappointment.co.uk/POL, where they can
review other issues or make comments on this advice.
Got a new question? Just email us at
[email protected] or visit us on the
website. This advice is meant for general entertainment
purposes only and, if you have a specific issue on
which you need help, you are advised to seek the
advice of a solicitor, HR Consultant or can obtain free
advice from ACAS.
“A compromise that satisfies both sides is far
better than scoring points.”
retailappointment.co.uk
07