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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46773
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I currently work for the NHS on a 37.5 hours per week

Customer Question

I currently work for the NHS on a 37.5 hours per week contract. The trust want to move to a 24/7 service with on call attached as part of my working. I am unhappy about committing to this but wonder if in the interests of the service I could negotiate a fixed term contract of say 6 months with on call after which I could be released from the on call commitments at the end of the fixed period? Could such a contract be legally water tight and therefore allow me to exit without fear of them forcing a change of contract upon me?
Submitted: 8 months ago.
Category: Employment Law
Expert:  Ben Jones replied 8 months ago.

Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today.

Expert:  Ben Jones replied 8 months ago.

So that I can look into your options, please can you tell me how long you have worked there for?

Customer: replied 8 months ago.
31 years
Expert:  Ben Jones replied 8 months ago.

OK thank you, ***** ***** it with me. I am in court today so will prepare my advice during the day and get back to you at the earliest opportunity. There is no need to wait here as you will receive an email when I have responded. Thank you.

Expert:  Ben Jones replied 8 months ago.

Many thanks for your patience. It is certainly possible to try and negotiate such a contract but whether the employer actually agrees to it is another matter. Whilst you can propose these suggestions to them, you cannot force them to agree to them or implement them.

On the assumption that they do agree to your proposal and allow you to work for a fixed period with the on call feature, then it would be a legally binding contract that the employer would be expected to honour. However, as you have seen now, they can attempt to make changes at any time. Generally, 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.

So the contract will be binding but can still be subject to any future plans on the employer to try and amend your existing terms and conditions. If they do so then you will have certain rights to challenge them.

This is your basic legal position. I have more detailed advice for you in terms of the rights you have to challenge potential future changes to your terms, 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: 46773
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 8 months ago.

Thank you. 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: replied 8 months ago.
Thank you. So in essence my employer has no real obligation to abide with a suggested negotiated fixed term contract even one that is designed to allow them to provide a service that would otherwise not be available. Even though the gesture on my part could be likened to an olive branch buying time for more recruits to come on board, if that does not happen they could legally enforce a change in my contract. My only option therefore would be to leave.
James.
Expert:  Ben Jones replied 8 months ago.

A contract is a contract and should be observed but as you can see there are various circumstances when changes may be sought or even implemented without the employee's consent. It does not mean that this is necessarily fair but if things are not resolved between employee and employer then the only option may be to leave, pursuing a constructive dismissal claim.

Customer: replied 8 months ago.
Hi Ben. Thank you for your comments. Given my situation (my age plus a recent car accident injury) is it possible to draw up a local legally binding contract with my employer that would guarantee that at the end of the term they cannot turn around and demand that I continue to personally provide the on call service?. I am just looking for some protection guarantee. Thanks.
Expert:  Ben Jones replied 8 months ago.

Any contract is only as binding as the parties are willing to abide by it. SO there will never be 100% guarantee that one of the parties won't agree to honour it. In this case it simply means you can argue a breach of contract based on the new terms

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