Many thanks for your patience, I am pleased to be able to
continue assisting with your query now. First of all, I am sorry to hear about
this situation and any associated issues.
If you had resigned, but then changed your mind and that was
accepted by the employer, it would be assumed that you would be returning to your
original post, i.e. the one you were in before you had resigned.
If the employer was looing at making changes to your
position, then these should have been communicated to you and either your
consent obtained, or the employer should have relied on a right to change your contract.
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
- 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