Across the news, we have seen that around 8 million jobs have been furloughed as a part of the government’s job retention scheme. If done correctly, this means that a significant number of workers would have had to agree to accept a change to their contract of employment in relation to the level of wages they would be paid and the absence of work to be provided by their employer.
Whilst those changes may have been intended as temporary, it is not hard to imagine that some companies may seek to make more permanent changes to employees’ terms and conditions as a means of cutting costs and in order to survive. These changes could take any form, but we anticipate the most common changes could be to employees’ salaries and/or hours of work.
So is it lawful for your employer to make such a change?
There is no simple answer to whether it is lawful or not but if your employer proposes a change and you agree to this change, provided adequate consideration (a benefit passing from each party to the other) is given, then the variation will, in all likelihood, be valid and thus lawful.
What happens if you do not agree to the change?
If you refuse to accept a change to your terms and conditions your employer could do any one of the following:
- Leave your terms and conditions as is, although this is unlikely;
- Impose the changes any way and leave it to you to decide how to react;
- Terminate your existing contract and offer to re-engage you on the new terms;
- Dismiss you outright;
- (If applicable) they could seek to vary your contract by a collective agreement which is binding on employees or exercise a right to vary the terms of the contract of employment pursuant to a right to do so in it.
What happens if your employer imposes changes on you which you did not expressly agree to?
If your employer makes changes to your terms and conditions and you continue to work, there is a chance that by doing so you eventually accept the change. Whether you have or not could depend on whether the change has immediate practical impact or not.
In such circumstances you have a number of options open to you:
- You can simply carry on working without protest;
- You can work under the new terms but state clearly that you are working under protest. If you do so, depending on what the change is, you may be able to bring a claim for breach of contract or unlawful deduction from wages;
- You could resign if the change to your contract amounts to a fundamental breach. You may then be able to bring a claim for constructive dismissal (if you have 2 years continuous service);
- You could (if possible) refuse to work under the new terms. This option could put you at loggerheads with your employer though and could lead to them dismissing you;
- If the changes are so drastic that you are working under wholly different terms, you may be able to work under the new terms and claim that you were unfairly dismissed.
Will I have a claim if I refuse to accept a change and get dismissed?
That will depend on the facts of your particular case and whether you have two years continuous service if you are looking to bring a claim for unfair dismissal.
In assessing whether you were fairly dismissed or not an Employment Tribunal will look at whether your employer had a fair reason for dismissing you and whether they can show that they acted reasonably in dismissing you in the circumstances. The Tribunal will also look at the procedure your employer followed and whether it was fair or not.
What factors would the Tribunal take into account in assessing whether your employer acted reasonably or not?
There is no comprehensive list of factors the Tribunal will take into account. They would rather seek to look at the full picture. Having said that however some examples of things the Tribunal may take into consideration are:
- Why your employer introduced the change in the first place;
- Why you refused to accept the change;
- Whether the change and its effect(s) were properly explained to you;
- Whether you were properly consulted over the change. This could involve dialogue between you and your employer about the change, the reason for your rejection of the change etc. It should be noted that where your employer proposes to dismiss 20 or more employees at one establishment within a period of 90 days or less, they would be under an obligation to consult about the changes proposed with either trade union or elected employee representatives in addition to individual consultation with the affected employees.
So based on the above, whether you should accept a change proposed by your employer or not is not an easy question to answer.
It may be that you choose to take a practical stance and agree to the change as the alternative may be that you are left having to find new employment and/or with the prospect of having to bring a claim against your employer.
Whilst the above gives you some general pointers on how to navigate a situation in which your employer is seeking to change your terms and conditions, it is no substitute for obtaining employment law advice from a specialist.
The best time to obtain such advice is as soon as your employer proposes a change and before you agree to it. Alternatively, an employment law specialist will be able to assist if any one of the above-mentioned scenarios occur, such as if you are dismissed or if you are working under protest and would like to know what you should do next.
If you are an employer reading this, it is also advisable that you too obtain advice before seeking to change the terms and conditions of your staff as the consequences of getting this wrong could be quite significant.
We at Neate and Pugh advise both employers and employees. If you require advice, please feel free to contact us on 0121 321 3333 or firstname.lastname@example.org.