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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46792
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Good evening I am employed by an NGO and I have a question: Today

Resolved Question:

Good evening
I am employed by an NGO and I have a question:
Today at 11 am, my colleagues and I were called in to a team meeting by our the head of our department where we were told that there had to be some restructuring in the department due to funding issues. It was totally unexpected and there had been no communication at all about this.

At 2 pm I had my first of two official consultation meetings, and the Director was pushing to have the 2nd this Friday. The consultation is supposed to start today 4th Feb and end on the 14th Feb. I think this is unfair and not enough time, it was grossly unfair to expect people to have consultation meetings the same day. Was this legal or best practice?

My current contract is a full time contract, they are proposing to cut my hours to 3 days a week. Can I ask them to honour the notice period of the termination of my current contract which is 12 weeks before the new reduced hours contract comes into force? I have financial commitments that I have to reorganise to reflect a reduced salary and I really don't want to reduce my hours anyway, can I refuse to do this?

If I don't want this new contract, can I ask for redundancy, I was informed that I was not eligible because the post is needed, is that true or legal, they are changing my terms and conditions contrary to what I signed up for in the first place.

Thank you,

Sandra
Submitted: 3 years ago.
Category: Employment Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today.

Ben Jones :

How long have you worked there for?

Customer:

Hi, Since April 2010

Ben Jones :

ok let me get my response ready please

Customer:

Great

Ben Jones :

There are a few ways in which an employer may try and make changes to an employee’s contract of employment. These are by:


• Receiving the employee’s express consent to the changes.


• Forcefully introducing the changes (called 'unilateral change of contract').


• Giving the employee notice to terminate their current contract and then offer them immediate re-engagement under a new contract that contains the new terms.


 


If the changes are introduced without the employee's consent, then the following options are available:


 


1. Start working on the new terms but making it clear in writing that you are working ‘under protest’. This means that you do not agree with the changes but feel forced to do so. In the meantime you should try and resolve the issue either by informal discussions or by raising a formal grievance.


 


2. If the changes fundamentally impact the contract, for example changes to pay, duties, place of work, etc., you may wish to consider resigning and claiming constructive dismissal. The resignation must be done without unreasonable delay so as not to give the impression that the changes had been accepted. The claim must be submitted in an employment tribunal within 3 months of resigning and is subject to you having at least 2 years' continuous service. You would then seek compensation for loss of earnings resulting from the employer's actions.


 


3. If the employment is terminated and the employer offers re-engagement on the new terms that could potentially amount to unfair dismissal. However, the employer can try and justify the dismissal and the changes if they had a sound business reason for doing so. This could be pressing business needs requiring drastic changes for the company to survive. If no such reason exists, you can make a claim for unfair dismissal in an employment tribunal. The same time limit of 3 months to claim and the requirement to have 2 years' continuous would apply.


 


Finally, it is also worth mentioning that sometimes employment contracts may try to give the employer a general right to make changes to an employee’s contract. As such clauses give the employer the unreserved to change any term, so as to evade the general rule that changes must be mutually agreed, courts will rarely enforce such clauses. Nothing but the clearest language will be sufficient to create such a right and the situation must warrant it. Any attempt to rely on such clauses will still be subject to the requirement of the employer to act reasonably and can be challenged as above.


 


In terms of redundancy it may not actually mount to one in this case if the jobs are continuing and the employer still needs the same number of employees to do these jobs so you will most likely have to pursue this as a change of contract matter and as described above.

Customer:

is the period of consultation they have given us reasonable and is it fair to tell us this out of the blue and then 2 hrs later have the first consultation to receive my concerns andso on, do I have grounds for a grievance on this point?

Ben Jones :

legally, it wouldn't be sufficient but it does not mean they can't do what they have done, it just means that this would amount to breach of contract which just be pursued as mentioned above

Customer:

If I understand correctly, you are saying this change could be challenged as an unfair dismissal even if they are offering new T&C on reduced hours? If so what can I actually claim for in terms of length of service?

Ben Jones :

well constructive dismissal actually, unfair dismissal is if you have been dismissed rather than forced to leave and here you would be forced to leave if you do not accept the changes. In a constructive dismissal claim you only claim for the loss of earnings resulting from you leaving, so if you find a job very soon after and it pays equally or better then your losses would be limited and compensation would be reasonably low, but if you find you are strugging to find a new job then these losses could be higher and ongoing and your compensation could reflect that

Customer:

legally, it wouldn't be sufficient but it does not mean they can't do what they have done, it just means that this would amount to breach of contract which just be pursued as mentioned above

Customer:

sorry - did you mean they cab do what they have done - I didn't get this

Customer:

I mean they CAN

Customer:

not cab

Ben Jones :

yes, just because it is wrong does not mean they cannot still go ahead and do it. For example, from strict legal point of view they should give you the 12 weeks notice and terminate your existing contract, then re-employ you on the new terms. But there is nothing stopping them from just forcing the changes through and burying their head in the sand - it would then be for you to decide how to deal with this - challenge the changes as explained above (grievance and constructive dismissal) or accept them

Customer:

What do you suggest I do in this case as I feel the consultation is too short for me to not have my hand forced in order to take the new T&C - how do I approach this in the first instance -please advice

Ben Jones :

are others involved in the same situation?

Customer:

YES

Ben Jones :

ok the more of you that are involved in this and take a stance as a group the more pressure you can place on the employer. Challenge them as a collective - you may start with informally approaching them but you may also pursue a grievance against the employer as that is the formal procedure to challenge issues in the workplace

Customer:

Would the grievance be about the implementation of the consultation process and its brevity or the actual change in T&C.

Customer:

The restructuring as they put is our department has seen some budgetary cuts from our main contributor, so the department may not survive but the NGO as a whole would - is that still a strong business case for them

Customer:

Is the short consultation period - breach of contract

Customer:

and the changes in the T&C - constructive dismissal?

Customer:

Have I got that correct?

Ben Jones :

it would be about the way they have handled this and not given you sufficient consultation to implement the changes. There may indeed be a genuine reason t make these changes, for example if by not doing them the likelihood is that the department will not survive, then making these changes can be a reasonable move to ensure the jobs are salvaged, but it still requires a fair procedure to be followed

The short consultation and the changes are breach of contract, which then results in constructive dismissal

Customer:

Ah ok.

Customer:

In making my case for not changing my T&C - how do you suggest I articulate this and how long a consultation period is reasonable?

Ben Jones :

there is no minimum period for consultation, it could be a week, it could be five but the ore serious the changes (like pay, duties, etc) then the longer period would be expected to ensure this is a fair procedure. The key is still how they implement the changes - do they automatically come in after the consultation or do they give you notice as per contract, the former will be unfair, the latter could be legal as explained above but can still be challenged. It is difficult to provide advice on how to articulate your case, this is specific to the reasons used by the employer to implement the changes so you need to pick them apart do to speak and provide your reasons as to why these reasons are not necessary - it will vary from one employer to another and from one industry to another and you would have a better idea than me as you know how the employer works and what its needs are - it s best to discuss this with all other involved as you will then get a group's opinion which will provide many more ideas than just one person

Customer:

Thank you for your help and patience

Customer:

I am happy to conclude the chat now

Ben Jones :

You are most welcome. Please take a second to leave a positive rating for the advice I have provided as that is an important part of our process. Thank you and feel free to bookmark my profile for future help:



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Ben Jones, UK Lawyer
Category: Employment Law
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