Rosemary Connolly LL.B., LL.M. Principal Solicitor Rosemary Connolly Solicitors Limited www.solicitorsni.net 1
➢ Great care must be exercised by an employer who wishes to effect changes to any material aspect of an employee’s contract of employment. ➢ The key observation is that any such change can only, lawfully, be secured with the consent of the employee. It cannot be unilaterally imposed. ➢ In the current challenging business environment it is foreseeable that in the coming weeks and months and particularly when the breathing space afforded by the CJRS Scheme comes to an end some employers within the Tourism and Hospitality industry who have been availing of it will need to take difficult decisions about: ❑ Reducing the numbers of employees (because of reduced business) ❑ Reducing the working hours of employees 2
➢ It is critically important where changes to working hours are deemed necessary that employers engage in meaningful consultation with affected employees including, where available, consulting with employee representatives. ➢ Effective consultation requires an open and honest explanation of the context in which the need to amend working hours arises. ➢ Care must be taken to ensure that adverse changes are not proposed in circumstances which could constitute unlawful discrimination. 3
➢ It would be unlawful to seek to impose reduced working hours disproportionately on, e.g. disabled or part-time workers. ➢ Equally, employers must be careful to ensure that employees are treated consistently and that any selection decisions whether to determine who shall be placed on furlough, who shall be brought back from furlough, whose of work shall be reduced and who shall be made redundancy are taken on the basis of objectively fair criteria. 4
Once changes have been agreed this will constitute a variation of the employment contact and a written recommendation must be retained. 5
If agreement cannot be reached then the employer has two options 6
If agreement cannot be reached then the employer has two options, either: ➢ Abandon the changes ➢ Notify the employee(s) that having failed to secure agreement to the proposed change it is now proposed to terminate the old Contract (on proper notice and in accordance with the statutory dismissal procedure) and to after re- engagement on the new (reduced) working hours arrangement 7
Note that the need to adhere to the statutory dismissals procedure does not apply where the employer is dismissing and offering to re-employ all the employees in the business or in a particular category/role but does apply where the employer seeks to change the terms of contract of one or more individuals rather than the whole section or category to which the employee belongs. 8
➢ An employer who seeks to impose a change to an employee’s terms and conditions of employment (e.g. reduced working hours) without the employee’s agreement will be in breach of contract. ➢ Even where a contract contains a unilateral variation clause imposition of same without consent will be vulnerable to challenge as unlawful. The employee then has the following options 9
The employee then has the following options ❑ Accept the unliterally imposed change to the terms and conditions of employment and overtime, by implication s/he will be deemed to have accepted same so that they are incorporated into the contract of employment ❑ Resign and claim constructive dismissal on the basis that there has been a fundamental breach of contract sufficient to bring it to an end ❑ Remain in employment and continue to work ‘under protest’ whilst pursing a claim in breach of contract ❑ Pursue a claim for unlawful deduction from wages 10
The employee then has the following options ❑ Accept the unliterally imposed change to the terms and conditions of employment and overtime, by implication s/he will be deemed to have accepted same so that they are incorporated into the contract of employment ❑ Resign and claim constructive dismissal on the basis that there has been a fundamental breach of contract sufficient to bring it to an end ❑ Remain in employment and continue to work ‘under protest’ whilst pursing a claim in breach of contract ❑ Pursue a claim for unlawful deduction from wages 11
Statutory Rights: ➢ An employee has the right to request a flexible working arrangement which an employer must properly consider. If the request is granted then this will constitute a variation of contractual terms which should be recorded. ❑ Such a request could be refused if it would adversely affect the efficient operation of the business but the employer in such circumstances will need to give reasons for refusal. ❑ Again employers need to ensure that they act consistently and fairly in dealing with flexible working arrangement requests. 12
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