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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
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Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I have worked employer years, my contracted hours

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I have worked for my employer for 11 years, my contracted hours are 48, we do not have set shift patterns but they have instructed us (the management) that we now have to work set hrs that include 5.30am starts and also 22.30 finishes. I am a single mum of a 4yr old that has behavioural problems so have constant school and paediatric appts. Can my employer make this change at short notice? Also can they insist on set shift patterns when we have never had to work set shifts in the past?
Ben Jones : Hello, my name is ***** ***** it is my pleasure to assist you with your question today. What are the employers reasons for the proposed changes?
Customer: They call it 'project 350' it means that it's a structure for stores that are taking £350,000 a wk, we currently trade at £220,000 and predict that this £350,000 is a very long way off as we are only growing at 18% rather than the 35% last yr. The other reason is so that they do not have to pay our deputy managers extra pay when we are not in the store. They earn an extra £3.50 an hr when the management are not there.
Ben Jones :

Hi, sorry my connection dropped earlier. Firstly you can try and argue that this is a change to your existing contact. Even if you pattern is not contractually defined, if you have been doing a set pattern for a prolonged period of time it can become an implied contractual term. 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.

Another approach, should the changes be introduced, is to apply formally for flexible working arrangements that would allow you to work around your child caring commitments. The employer has a duty to formally consider such a request and deal with it.

Hope this clarifies your position? If you could please let me know that would be great, thank you

Ben Jones :

Hello, I see you have accessed and read my answer to your query. Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this? I just need to know whether to close the question or not? Thanks

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