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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 45291
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Hello I work for a local authority as a driver and have a

Customer Question

Hello
I work for a local authority as a driver and have a contract for driving disabled schoolchildren to school. Alongside that work I was doing community bus driving for the same employer along with four other driver on a rota basis, the rota being published six months in advance. I was paid for the community bus work on a casual employee basis and the hours were aggregated with work done on the school contract and total hours in excess of 37 in a calendar week were paid at time-and-a-half. This community bus work started in July 2013. In January 2014 the Council issued written contracts for the community bus work. They did not consult with the drivers about any changes to the working practices that existed prior to January 2014. The written contract is being treated as a separate job from that of the school driving work but hours are no longer aggregated and the time-amd-a half payments have ceased They have also reduced the basic rate of pay by placing all five drivers on the community work two scale points below the maximum. The pay scale is otherwise the same as that for the school work. What is our legal position?
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. Did you all start working in that job in Jul 2013?

Customer:

I started working on the school work i on contract in March 2013. The community bus work which is the cause of the problem started in July 2013

Customer:

yes we all started in July 2013 on the community bus work

Customer:

are you there?

Customer:

hello? areyou there?

Ben Jones :

yes I am let me just get my response ready please

Customer:

ok sorry

Ben Jones :

no problem

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.

Customer:

Ok thanks. I am right in believing that prior to the written contract being issued that an oral or implied contract could be regarded as being in place?

Customer:

sorry...I meant..."Am I right"?

Ben Jones :

yes that is correct but that does not stop the employer changing it as discussed above and still does not change the fact you cannot formally challenge such changes apart from a grievance

Customer:

even though we were not consulted about changes and were not made aware of significant changes i.e. the cessation of time-and-a half payment?

Customer:

would the written contract be invalid because of non-consultation?

Ben Jones :

it is not a legal requirement to hold consultation before making changes, as mentioned they can just introduce them straight away and then it would be for you to challenge these but as mentioned the lack of continuous service here would mean you cannot take it any further than an internal grievance

Customer:

continuous service?...ot sure what you mean by this

Customer:

not

Ben Jones :

as mentioned you need 2 years in a job to be protected - in this job you have less than a year, having been there since Jul 13 only

Ben Jones :

So you cannot make the claims such as constructive dismissal if you wanted to take the matter further

Ben Jones :

Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this? Thanks

Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 45291
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and other Employment Law Specialists are ready to help you
Expert:  Ben Jones replied 2 years ago.
Hello John, could you please let me know if I have answered your original question or if you need me to clarify anything else for you in relation to this – this is needed so I can either keep the question open or close it if no further advice is required? Thank you
Customer: replied 2 years ago.

Hello Ben


Yes, you have answered my questions which has enabled me to make a considered decision on what to do. In view of my length of service I feel I have no choice other than to accept the contract and offset the reduced remuneration with the additional benefits of holidays, bank holiday payments and sick pay. Despite my feelings that the Council are riding "roughshod" over its employees I have no better option. Thanks for your assistance.

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