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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 73502
Experience:  Qualified Employment Solicitor
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I have been working at my current role for just over 10

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Hi, I have been working at my current role for just over 10 years. I am in finance department responsible for vendor payments, VAT returns, payroll, HR and so on.. Previously (about 3-4 years ago) I have carried out H & S duties as well but now we have no H & S officers to carry out such tasks and my director is forcing H & S duties onto me. He says that I am not doing 40 hours a week as I supposed to and as the company is getting smaller there are less transactions so I am not that busy. He sees this as a ad hoc duty which I should do as I am told. Firstly, since COVID 19 there are more responsibilities that companies need to take which involves a lot of admin work which I do not wish to take. Also again due to COVID19 this is a very sensitive area for any business which I do not feel confident taking over. H & S was not even mentioned on my last KPI and now my director is going over my KPI and wants to remove some of my finance duties against my wishes so I can carry out H & S duties.
JA: Have you discussed this with a manager or HR? Or with a lawyer?
Customer: I am the HR and I have just had the call from him so I do not know who to approach
JA: What is your employment status? Are you an employee, freelancer, consultant or contractor? Do you belong to a union?
Customer: employee
JA: Is there anything else the Lawyer should know before I connect you? Rest assured that they'll be able to help you.
Customer: I can provide more details on the phone

Hello, I’m Ben. It’s my pleasure to assist you today. I may also ask for some preliminary information to help me determine the legal position.

What do you specifically want to know about this, please? Please note this is not always an instant service and I may not be able to reply immediately. However, rest assured that I am dealing with your question and will get back to you today. Thanks

Customer: replied 11 days ago.
Hi Ben, I would like to know that if I have a right to refuse my director’s demands? Also does my director have a right to remove my other duties in order for me to cover H & S duties please?

Thank you. What do you specifically want to know about this, please?

Customer: replied 11 days ago.
I am sorry I thought this was a free helpline. I will contact another firm

Ok no worries, I can provide a general answer anyway, for example if your employer is trying to make you do things outside of your contract, thus effectively changing your terms.

There are occasions when an employer may try to make changes to an employee’s contract of employment. If they wish to do so, there are a few ways in which they can do it:

- They can ask for the employee to give their consent to the changes.

- They can rely on a flexibility clause in the contract, allowing for certain changes to be made

- They can give the employee the required notice to terminate their current contract and re-engage them under a new contract, which contains the desired changes.

- They can ignore all of the above and simply force the changes through with no notice or consultation.

Assuming consent is given, the changes can be implemented with a simple variation to the contract or a separate addendum. If the changes are not agreed, based on which method the employer adopts to implement them, the following options are available to employees to challenge such actions:

1. If there is a flexibility clause, it must be precise and allow the specific changes that are proposed. Clear language in the drafting of the clause will be required to allow such a right. Any attempt to rely on such clauses will also 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. Consultation is key in these circumstances.

2. If the employer gives the employee notice to terminate their current contract and re-engages them under a new one, it could potentially amount to unfair dismissal. However, the employer can try and justify their actions if they had a solid business reason for doing so, most commonly due urgent financial needs. If no such reasons exist and it appears to have been an opportunistic approach by the employer to implement changes, 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. This would be on the grounds that there has technically been a dismissal because the original contract was terminated by the employer.

3. If the employer forces the changes through, without any notice or consultation, the employee can start working on the new terms, then immediately write to the employer to make it clear 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 other option. In the meantime, they should try and resolve the issue by raising a formal grievance with the employer. 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. Also, if the changes fundamentally impact the contract, for example changes to pay, duties, place of work, etc., it is also possible to consider resigning and making a claim constructive dismissal in the Employment Tribunal. The employee must accept the changes and immediately resign in response to them. A claim is again dependent on the employee having at least 2 years' continuous service with that employer.

Please see here for further information about this topic

Hopefully, I have answered your query in a way that is simple and easy to understand. If anything remains unclear, I will be more than happy to clarify it for you. In the meantime, thank you once again for using our services.

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