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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 50148
Experience:  Qualified Employment Solicitor
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I would like some advice on the following: I have

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I would like some advice on the following:
I have been working as a key worker in a nursery for the last two years. I have started to look around for another job and I have had a few interviews. My nursery lead has told me as I am looking for another job I cannot be a key worker anymore as it's is not fair to the children if I leave and I will just be carrying out general duties. Can she do this?
Kind regards Julie
Hello, my name is ***** ***** it is my pleasure to assist you with your question today. has you manager had a one to one with you around this situation please.
Customer: replied 2 years ago.

Yes she had a meeting with me on Wednesday 20th May. I told her I was not happy with her decision and I still wanted to be a key worker.

OK thank you, ***** ***** it with me. I am in a tribunal today so will prepare my advice during the day and get back to you this afternoon. There is no need to wait and you will receive an email when I have responded. Thank you
Many thanks for your patience. Just before I finalise my advice can you please clarify the following points for me:
1. When exactly did you start working there as that would be relevant to your rights?
2. Is being a key worker something you are entitled to under contract? Is it a permanent entitlement or something which can change from time to time?
Customer: replied 2 years ago.

I started working at the nursery on the 18th April 2013. I have a contract which states I am employed as a nursery assistant - key person on a permanent basis. The nursery is for 2 to 4 year olds.

It appears that your contract states you are employed as a key person on a permanent basis. There also appears to be nothing which states they could remove those responsibilities. The fact that you are looking for a new job does not mean that the employer can go ahead and changer your contract.
As far as the law stands, 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.
I hope this has answered your query. Please take a second to leave a positive rating, or if you need me to clarify anything before you go - please get back to me and I will assist further as best as I can. Thank you
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