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Ben Jones
Ben Jones, UK Lawyer
Category: Law
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My wife is a minimum wage part time worker (20 hours a week

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Hi,My wife is a minimum wage part time worker (20 hours a week shop assistant) in a small company (10 outlets) pharmacy business. She has worked there since 1995 working week day mornings only. She only took that role as I was in the armed forces at the time and we tried to protect whatever weekends we had together and Saturdays were never required. The business is now trying to get her to work a rota system (1 in 4) for Saturdays. Although I have now left the services my role in industry requires a degree of midweek absence, which makes her naturally unwilling to agree to any weekend working and so gives a reasonable reason in our minds as to why she would not want to consider this.Her Company has now said that unless she agrees to work weekends that she will be dismissed on the grounds that she is expected to be flexible in her working hours from her contract. This is not specifically mentioned in her contract, which not surprisingly for a small business, is quite bland.This does not 'feel' to be right in our minds and from the pressure my wife is getting almost appears to be bullying, but certainly threatening. Do you feel that our natural feelings of what is right and wrong are well founded? Or do you feel that our instincts may be wrong? We are considering whether to take formal legal advice, but with someone on the minimum wage we have to be cautious that we are not standing up for a principle that we have in our minds, which may not be supported in employment law.
Submitted: 19 days ago.
Category: Law
Expert:  Ben Jones replied 19 days ago.

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

Expert:  Ben Jones replied 19 days ago.

Has she ever been expected to work weekends since starting to work there?

Customer: replied 19 days ago.
Not as a matter of principle, but she has worked very occasionally to help out colleagues. Perhaps once or twice a year at a maximum.
Customer: replied 19 days ago.
Awaiting your response!
Expert:  Ben Jones replied 19 days ago.

Thanks, ***** ***** just getting my answer ready. From time to time an employer may try to introduce changes to an employee’s contract of employment. Often this is for business or economic reasons. If they wish to do so, there are a few ways they can go about it:

· Receive the employee’s consent to the changes.

· Give the employee the required notice to terminate their current contract and re-engage them under a new contract containing the changes`.

· Simply forcing the changes through with no notice or consultation.

If the changes are introduced without the employee's consent, then the following options are available to them:

1. Start working on the new terms but making it clear in writing that this is done ‘under protest’. This means that they do not agree with the changes but feel forced to work under them as they have no option. In the meantime try and resolve the issue by raising a formal grievance. This is only a short-term solution though as the longer someone works under the terms, even under protest, the more likely it is that they will eventually be deemed to have accepted them.

2. If the employer gives notice to terminate the current contract and re-engages the employee on the new contract, it could potentially amount to unfair dismissal. However, the employer can try and justify their actions if they had a sound business reason for doing so, usually from an urgent financial perspective. If no such reason exists, it is possible to make a claim for unfair dismissal in the employment tribunal, subject to having at least 2 years’ continuous service with that employer.

3. If the changes fundamentally impact the contract, for example changes to pay, duties, place of work, etc., it is possible to resign and claim constructive dismissal. The employee must accept the changes and immediately resign in response to them. A claim is again dependant on the employee having at least 2 years' continuous service with the employer.

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 right to change any term, nothing but the clearest language will be sufficient to enforce such a right. Any attempt to rely on such clauses will be subject to the requirement of the employer to act fairly and reasonably and be able to show that it was necessary to apply the required changes and that there was no other way to resolve the situation.

Please take a quick second to leave a positive rating for the service so far by selecting 3, 4 or 5 stars above. I can continue answering follow up questions and in particular can also discuss the constructive dismissal option in the event she has to rely on it. There is no extra cost for this - leaving your rating now will not close the question and means we can still continue this discussion. Thank you

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Expert:  Ben Jones replied 19 days 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 resigns in response to it.

Whilst the alleged breach could be a breach of a specific contractual term, it is also common for a breach to occur when the implied term of trust and confidence has been broken. The conduct relied on could be a serious 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).

Before constructive dismissal is contemplated, it is recommended that a formal grievance is raised in order to officially bring the concerns to the employer's attention and give them an opportunity to try and resolve them.

If resignation appears to be the only option going forward, it must be done in response to the alleged breaches (i.e. without unreasonable delay after they have occurred). Whilst not legally required, a resignation would normally be with immediate effect and without serving any notice period. It is also 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 with the employer. There is a time limit of 3 months from the date of termination of employment to submit a claim in the employment tribunal.

It is worth mentioning that there is a possible alternative solution, where the employer is approached on a 'without prejudice' basis (i.e. off the record) to try and discuss the possibility of leaving under a settlement agreement. Under such an agreement, the employee gets compensated for leaving the company with no fuss and in return promises not to make any claims against the employer in the future. It is essentially a clean break, where both parties move on without the need for going to tribunal. However, it is an entirely voluntary process and the employer does not have to participate in such negotiations or agree to anything. It just means that these discussions cannot be brought up in any subsequent tribunal claim and prejudice either party. So there is nothing to lose by raising this possibility with them as the worst outcome is they say no, whereas if successful it can mean being allowed to leave in accordance with any pre-agreed terms, such as with compensation and an agreed reference.