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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46809
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I have recently had four weeks off work with work related

Customer Question

I have recently had four weeks off work with work related stress.Prior to my return I was asked by the Health & Safety Manager what had caused the problem.I advised her that my line manager had caused the stress and I gave her five instances this year alone.She advised me that a company director wished to speak to me on my return to work. At that meeting I repeated what I had told H& S at no time did they ask for the complaint in writing although I offered so to do.The director then told me to go home on full pay whilst he conducted an investigation.After two weeks I returned to work and the director wrote advising that there was no case to answer. Within an hour of returning to work my line manager advised me that he was altering my working day thus reducing my contracted working week by 5.5 hours per week. I pointed out that I had worked the hours he put in wring in Feb 2013 which were in line with the hours outlined in my contract.He would not alter his mind I even asked for the status quo to be adhered to until it was sorted out and this was refused. So I wrote to the director outlining a further
problem to which I have had no response.
Submitted: 9 months ago.
Category: Employment Law
Expert:  Ben Jones replied 9 months ago.

Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today.

Expert:  Ben Jones replied 9 months ago.

How long have you worked there for? Also, please can you provide me with details of your contracted hours and anything your contract may say in relation to the employer being able to change this. Thank you

Customer: replied 9 months ago.
I have worked there for 7 years.I am supposed to work a two shift patten but the person on the am shift will not work the pm shift so I have always done it.The hours were formalised to cover this in February 2013 by the line manager and I have worked those hours since.(Payslips for the last three years will prove this.
My original contract (which was never altered to cover this) states "The employer reserves the right to determine general times of starting or ending work upon reasonable notice"
I perspnally do not consider being told after six weeks away that my hours are changing that day and none of the other staff are having theirs altered.
Regards
Expert:  Ben Jones replied 9 months ago.

OK, thank you for your response. I will review the relevant information and laws and will get back to you in a short while. There is no need to wait here as you will receive an email when I have responded. Also, please do not responded to this message as it will just push your questions to the back of the queue and you may experience unnecessary delays. Thank you.

Expert:  Ben Jones replied 9 months ago.

Apologies for not getting back to you sooner, I experienced some temporary connection issues and could not get back on the site until now. All appears to be resolved now so I can continue dealing with your query.

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.

This is your basic legal position. I have more detailed advice for you in terms of the law on constructive dismissal and how it can apply to you here, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, there is no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you

Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46809
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 9 months ago.

Thank you. As mentioned, this could potentially amount to constructive dismissal, which occurs when the following two elements are present:

· Serious breach of contract by the employer; and

· An acceptance of that breach by the employee, who in turn treats the contract of employment as at an end. The employee must act in response to the breach and must not delay any action too long.

A common breach by the employer occurs when it, or its employees, have broken the implied contractual term of trust and confidence. The conduct relied on could be a single act, or a series of less serious acts over a period of time, which together could be treated as serious enough (usually culminating in the 'last straw' scenario).

The affected employee would initially be expected to raise a formal grievance in order to officially bring their concerns to the employer's attention and give them an opportunity to try and resolve them. If the issues are so bad that the employee can't even face raising a grievance and going through the process, or if a grievance has been raised but has been unsuccessful, then they can consider resigning straight away.

If resignation appears to be the only option, it must be done without unreasonable delay so as not to give an impression that the employer's breach had been accepted. Any resignation would normally be with immediate effect and without providing any notice period. It is advisable to resign in writing, stating the reasons for the resignation and that this is being treated as constructive dismissal.

Following the resignation, the option of pursuing a claim for constructive dismissal exists. This is only available to employees who have at least 2 years' continuous service. There is a time limit of 3 months from the date of resignation to submit a claim in the employment tribunal.

An alternative way out is to approach the employer on a 'without prejudice' basis (i.e. off the record) to try and discuss the possibility of leaving under a settlement agreement. Under a settlement agreement, the employee gets compensated for leaving the company and in return promises not to make any claims against the employer in the future. It is essentially a clean break, although the employer does not have to agree to it so it will be subject to negotiation. In any event, there is nothing to lose by raising this possibility with them because you cannot be treated detrimentally for suggesting it and it would not be used against you.

Just to make a final, yet important point, that constructive dismissal can be a difficult claim to win as the burden of proof is entirely on the employee to show the required elements of a claim were present. Therefore, it should only be used as a last resort.

Customer: replied 9 months ago.
Thank you Ben
It is worth mentioning that the Company Secretary called me in prior to returning to and offered me a settlement of three months salary plus a cash incentive of10k.
I turned this down as I have only 18 months to retirement.
I have put it into writing regarding the alteration to hours and salary.
Regards
Robert
Expert:  Ben Jones replied 9 months ago.

the employer is free to offer you a settlement if they wanted to without being penalised in the future for doing so, therefore you cannot mention this in a claim or use it against them. Of course you did not have to accept this at the time either.

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