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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46182
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Can I ask for some guidance for now, when it comes to real

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For Ben Jones, hi can I ask for some guidance for now, when it comes to real action from HR, I will have to come to your for some proper legal advice by then.
Submitted: 6 months ago.
Category: Employment Law
Customer: replied 6 months ago.
I have a full time employment contract with a uk company which I joined at the start of the business and literally built the business here. At the beginning of my work (22months ago), the current management verbally agreed that I can work from home every Friday because my daughter's nanny only works Mon to Thur. Meanwhile, there is a quarterly commission scheme based on a set formula from which I have been receiving quarterly commission from the income I have brought in for the company. There is a recent management change and I have heard that the new CEO doesn't like my Friday "work from home" and doesn't not like the quarterly comm term as the company is only breakeven level but I am getting paid commission (whilst the income from my business counts probably 80% of the whole company's revenue). I am sure the new HR will come to make a suggestion on my contract terms: either I go to office on Fridays (which I cannot do and don't want to), or reduce my salary pro rata; and will want to remove my commission term or make changes to add terms like when the company is in profit. What's my best option on both terms and can the employer force a new contract on me without my agreement?
Customer: replied 6 months ago.
Also I found a term that if the contract terminates, the company is entitied to claw back all comm paid in the last financial year. Does this term actually stand legally at all in UK court? That four quarterly commission and that almost means I can never resign.
Expert:  Ben Jones replied 6 months ago.

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

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.

The issue here is that you have been with the company for less than 2 years which means you are not protected against unfair dismissal. What the employer could do then is issue you with notice to terminate your current contract, terminating your employment and then re-employ you immediately on the new contract with the new terms. You cannot challenge the termination due to not being able to claim unfair dismissal. So there is a legally acceptable option for them to terminate your existing contract.

As to clawing back the commission, such a clause can be legal but not in all circumstances – it still has to be fair and reasonable. So if they tried to claw it back after the instigated the dismissal, that would likely be seen as unreasonable as it could be seen as taking advantage of you. However, if you decided to resign then they potentially could apply it. This would not apply if your resignation was as a result of a breach of contract by them, so something serious like bullying, discrimination, non-payment of salary, etc.

I hope this has answered your query. I would be grateful if you could please take a second to leave a positive rating (3, 4 or 5 stars) as that is an important part of our process and recognises the time I have spent assisting you. If you need me to clarify anything before you go - please get back to me on here and I will assist further as best as I can. Thank you

Expert:  Ben Jones replied 6 months ago.

My full response should be visible on this page. Could you please let me know if it has answered your original question or whether you need me to clarify anything else in relation to this? If your query has been answered I would be grateful if you could please take a second to leave a positive rating, selecting 3, 4 or 5 starts at the top of the page. Thank you

Customer: replied 6 months ago.
The income from my client portfolio counts 70-80% of the company's revenue so the company will not easily consider terminating my contract as an option. Also I don't think they will be acting so quickly to change my contract yet as the new management is actually asking me about help to take up more responsibility to expand the business. So once the service is over 24 months (only 1.5m away from now), how can they change term of contract and how can I protect myself? Thanks!
Expert:  Ben Jones replied 6 months ago.

Hi there happy to provide ore detail on their options, if you could please leave your rating for the initial response then I can continue assisting, thank you

Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46182
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 6 months ago.

Thank you. As mentioned, 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.

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