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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46144
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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About a week ago I was called in to an 'informal meeting'

Customer Question

About a week ago I was called in to an 'informal meeting' with the bursar and bursar designate to put to me a proposal that part of my job (admissions) would be taken away and given to a new member of staff along with part of another member of staff's job (marketing) which would have the effect of reducing my hours to 0.68 and hers to 0.5. This was the first we had heard about this, and I would like to talk to someone about what my position is legally. My tel no is 01403 822391 ext 201 which is my work email so please be discreet if I don't answer the phone - I am only here today until 1.00. Alternatively my home email is***@******.*** and I will be there from about 3.00. I am contacting you now from work.
Submitted: 7 months ago.
Category: Law
Expert:  Ben Jones replied 7 months ago.

Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today. How long have you worked there for?

Customer: replied 7 months ago.
8.5 years as Headmaster's Secretary and Admissions.
Customer: replied 7 months ago.
Their proposal is that I just become Headmaster's PA and lose the admissions. As admissions is the part of my job I enjoy most I am not happy about this.
Customer: replied 7 months ago.
Can you advise what my legal position is? I have done some research on the internet and most sites suggest that unless the change is mutually agreed it cannot be enforced, so does that mean I can go back with a counter proposal which will have less impact on my hours?
Customer: replied 7 months ago.
Can you get back to me as soon as possible please?
Expert:  Ben Jones replied 7 months ago.

What appears to be happening here is that they are trying to change 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 and also ways of negotiating with them, 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

Customer: replied 7 months ago.
Thanks so much Ben. If you could let me have any advice on constructive dismissal as I believe this is difficult to prove. The Headmaster has asked to see me to talk about this today but I have said I need until Monday, so should I have someone with me on Monday to take notes? Or should I take my own notes?
Expert:  Ben Jones replied 7 months ago.

Legally, you are only allowed to have a companion if this was a formal grievance or disciplinary meeting, and this is neither of these. However, it does not prevent you from asking the employer to allow this and they could certainly let you have someone with you. So it is entirely up to you - but you can take your own notes if you wanted to. Alternatively you may ask to record the meeting.

happy to continue discussing the constructive dismissal matter, would be grateful if you could please leave your rating for the response so far then I can continue with more detail, many thanks

Customer: replied 7 months ago.
Thanks Ben, yes would appreciate your advice on whether constructive dismissal is valid in this case as they are offering me a 0.68 of hours position as Headmaster's PA (note small change of job title) - does this mean I don't qualify for constructive dismissal as I am clearly able to do this other job (albeit at a large financial cost to me with the reduced hours)?
Customer: replied 7 months ago.
Not sure if you have just messaged me to ask me to call you or whether that is the automatic default of this website - cant really call as I am at work at the moment so would prefer it if you could continue in writing if poss. Appreciate your help with this.
Expert:  Ben Jones replied 7 months ago.

I can continue in writing, no problem. The fact that you can do the job does not mean that you cannot claim constructive dismissal. You are still having your hours reduced by about a third, which is a significant change and can amount to a serious enough breach of contract to justify constructive dismissal. As mentioned I can discuss this in more detail but please leave your rating first and then I can continue with my follow up advice, thank you

Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46144
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
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Customer: replied 7 months ago.
Sorry thought I had already done that but hadn't confirmed it. Done now
Expert:  Ben Jones replied 7 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). In your case the changes to your contract which amount to a significant reduction of hours can be such a breach.

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.

Customer: replied 7 months ago.
Thanks Ben, that's really helpful.
Expert:  Ben Jones replied 7 months ago.

You are most welcome

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