During the employment lifecycle, it is not uncommon for some of the terms and conditions under which an employee is required to work to change. These could include, for example, changes to the employee’s working hours or pattern, changes to their job role or rate of pay, or even changes to their place of work. However, as a matter of law, both the employer and employee would usually need to be in agreement for those changes to take legal effect.
Without an effective variation clause within the employee’s contract of employment, this means that to be able to effectively make changes, the employer would need to consult or negotiate with employees, or with the representatives of any recognised trade union or staff association. During this consultation process, the employer must explain the reasons for the proposed changes and listen to alternative ideas from employees or their representatives.
If the changes can be agreed, either directly with staff or representatives on their behalf, the employer would need to update the terms of their employees’ written statement of employment conditions. They would also need to write to each employee affected by the changes within a month, notifying them in writing as to what has been agreed, including any changes made to collective agreements with trade unions or staff associations.
If, however, an employer tries to change an employee’s contract without their agreement, this can give rise to serious problems. In these circumstances, an employee may have the right to refuse to work under the new conditions or to say that they are working under protest and are treating the change(s) as a breach of contract. They will also potentially have the right to resign and claim constructive dismissal before an employment tribunal.
As a last resort, an employer may bring a contract to an end, and re-employ someone on new terms and conditions although, to do so, the employer must first follow a lawful redundancy procedure. Additionally, if the employer does dismiss and re-employ someone, even if they follow an appropriate redundancy procedure, the employee may again be able to take a case to a tribunal, claiming breach of contract and unfair dismissal.
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