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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 44366
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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My question relates to enforced change of working practice,

Resolved Question:

My question relates to enforced change of working practice, and loss of sales figures and commission/ income
I have for he past 4 years (as part of my job) been responsible for renewing motability scooter contracts. which are renewed every 3 years. For this part of my job( full time employment) I receive a flat rate commission of £25 per renewal contract. with the scooter value going to sales figures.
Apart from being on annual leave I have been the sole re newer of the contacts.
I will be 65 on September the 6th 2016, and am not sure if age discrimination, is a factor with what happened last week.
Without warning , with no contact/discussion or reason given ,the rental renewals have been given to another younger remember of staff. (scooter service engineer) who never renewed a contract before, by my company sales director. I only found out on Thursday last week, these changes. The engineer, shop manager and part time admin lady all new prior to the note coming out, But! i was kept totally in the dark.
Results from these action.
Loss of sales figures, but! more important a financial annual loss of some £750 (approx) per calendar year
your help in knowing my rights in this matter would be appreciated.
Very Best Regards
Richard Harper
Submitted: 2 months ago.
Category: Law
Expert:  Ben Jones replied 2 months ago.

Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today. Are these duties included in your contract of employment?

Customer: replied 2 months ago.
No they are not immune contrac of employment.
I have a letter from the company giving me a pay rise 3 years ago giving me an upgrade in my status within our company, but! My contract was never upgraded.
The company does not give contract of employment. to staff in general.
But I can prove that I have been doing the job and being paid for the work for the past 3 years.
Some one at work has told me that she thought that if someone has been doing a specific job for at least 12 notification must be given/ discussed before changes are made.Please adviseThanks
Expert:  Ben Jones replied 2 months ago.

Many thanks for your patience. The fact that these duties are not contained in your contract should not necessarily affect your rights. You are able to argue that they have become an implied term through custom and practice, i.e. By being consistently applied over time.

Therefore, it could make this a case of the employer changing your terms and conditions. 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, 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: Law
Satisfied Customers: 44366
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and other Law Specialists are ready to help you
Expert:  Ben Jones replied 2 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.

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