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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 44379
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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I have worked in office based sales for over 2 years, my employer

Customer Question

I have worked in office based sales for over 2 years, my employer is now saying that I have to travel the country meeting existing customers and finding new customers 2 days every 3 weeks. They say it is a reasonable ask and if I don't obey their instructions it is gross misconduct. No written contract exists and on being offered the job it was never mentioned nor implied that I would have to go out on the road, if it had been I would have rejected the job offer. I believe that my contractual obligations are based on custom and practise and that I am obliged to clock on at my place of work at 9 and clock off at the same place at 5.30 with 60 minute lunch break.
Submitted: 2 years ago.
Category: Law
Expert:  Ben Jones replied 2 years ago.

Ben Jones :

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

Ben Jones :

Has your job role changed recently please?

JACUSTOMER-927kc010- : No, I have worked for the company for 8 years, in April 2011 I was asked if
JACUSTOMER-927kc010- : If I would move from admin to sales after someone left.
Ben Jones :

OK, thank you, please leave this with me - I will look into this for you, get my response ready and get back to you on here. No need to wait around and you will get an email when I have responded, thank you

JACUSTOMER-927kc010- : Thank you
Ben Jones :

Whether the employer can ask you to go on the road and do these new tasks would largely depend on a couple of things. Firstly, is there a contract that details your terms and conditions, which does not apply to you. Secondly, an it be argued it had become an implied contractual term through custom and practice that your current arrangements are your contractual terms. This is a possibility here - the basic requirement for implying terms is the presumed intention of the parties, in other words - did the employer and employee intend for the term(s) in question to be treated as contractual. In general, a practice would need to have been clearly communicated and consistently applied for a substantial period of time before it can be considered an implied contractual term. Therefore, something that is uncertain, has not been applied consistently or has just been around for a few months is unlikely to qualify.

Finally, was it ever suggested that this is a possibility or is it common practice for employees in your position to have to do this. If the answer is no to either, then it would suggest that the request is not reasonable so treating it as gross misconduct is unlikely to be seen as fair.

Whilst you can challenge the proposed changes, if the employer disagrees they can still proceed with disciplinary and even dismissal. It then means that to pursue your rights against them in the employment tribunal by considering an unfair dismissal claim.

Ben Jones :

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

JACUSTOMER-927kc010- : It was never suggested when I accepted the job that this was a possibility. My predecessor did the job for 10 years and never went out on the road. New customers were gained via mail shots and tele marketing. They took an extra sales person on who came from a marketing background and he started with a blank sheet and he did a mixture of tele marketing and cold call visits, I had an issue with equality and same pay as he was getting 40% more pay and I got told he got paid more because he went out on the road. He is 30 and I am 48 and female. I have increased sales by 300%over my predecessor and sell more than the guy who gets 40% more pay so obviously it can work without going on the road.
Ben Jones :

then you have strong grounds to challenge these proposed changes and argue that they now amount to a change to your contractual terms and conditions and is not something that is covered by your current duties and responsibilities.

If the changes are introduced forcefully then the following options are open to you:

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 are only working them because you feel you are forced to. In the meantime you should try and resolve the issue either by informal discussions or by raising a formal grievance.

2. If the changes are serious enough (e.g. a change to pay, duties, place of work, etc.) you may wish to consider resigning and claiming constructive dismissal. The resignation must be done without undue 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.

3. Finally, 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 justify the dismissal and the changes if they had a sound business reason for dismissing an employee who refuses to accept the variation in terms. 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.

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