As with any contract, changes to an employment contract will ordinarily need to be agreed by both parties. If the scope of existing contracts with staff does not enable him to alter their hours, Joe will need to seek their agreement to make such a change to their terms and conditions.
Ultimately, if they refuse, he could consider terminating their current contracts and offering to re-engage them on new ones that include the new hours. However, there could be serious financial repercussions if the employees successfully claim unfair dismissal.
First, Joe needs to look carefully at the contract of employment of each employee, to determine whether he can oblige them to finish later.
If the contracts are drafted flexibly, he may have the authority to get them to work longer. If there's no express clause allowing him to increase their working hours, and he cannot obtain their consent, it's unlikely that he will be able to argue that there's an implied term allowing him to impose this change. Therefore, he will be in breach of contract if he proceeds with his plans, and an employee could resign and bring a constructive unfair dismissal claim against him.
Even if Joe has a flexible "hours of work" clause, he may find it difficult to rely on it if he hasn't, in practice, changed employees' hours in the past.
However, if he can get the employees to expressly agree to work later, this variation of their contract will be valid and enforceable. This change can be agreed orally, but it is strongly recommended that their agreement be confirmed in writing, in case they try to contest the issue later. In any event, Joe should send a statement to the employees concerned within one month of the change, notifying them of the new hours of work.
Joe could consider changing shift patterns, as this may be more attractive to some staff than simply being obliged to work longer. Alternatively, he may want to consider recruiting additional staff.
If Joe cannot rely on an existing clause in his employees' contracts, nor can he obtain their consent, the last resort would be to terminate their existing contracts. To minimise the risk of repercussions, Joe would need to show that he had sound business reasons for dismissing an employee who refused to accept the proposed change and that he had acted reasonably in dismissing them. He would need to show that he had weighed up all the relevant factors, including the disadvantages the employee would suffer; whether these outweighed the advantages to the business if the changes were implemented; whether he responded reasonably to the employee's objections; and whether a majority of his employees had accepted the changes.
Check terms of existing contracts in good time before you want staff to start working longer hours.
Ensure that each contract gives you authority to increase hours of work and, if not, try to agree the changes with the employee.
Consider recruiting extra staff to cover the additional later opening hours, if you cannot agree changes.
Contemplate terminating contracts and offering new ones only as a last resort.
If Joe terminates an employee's contract and offers to re-engage him or her on new terms and conditions, reflecting the increased hours of work, the dismissal may be found to be unfair by a tribunal and he may be ordered to pay compensation up to a maximum of £65,200.
Joe may also face sex discrimination claims from female members of staff if he imposes this change, as they may be less able to comply with it due to childcare responsibilities. He will also need to consider the implications of the Working Time Regulations 1998, with regard to maximum weekly working time, rest breaks and night work.
Jennifer Leeder, Howes Percival
Tel: 01603 762103
BOXHEAD: the problem
BOXTEXT: Joe runs a city-centre pub. He is aware that the other pubs nearby are planning to extend their opening hours until 3am to take advantage of new freedoms under the Licensing Act 2003. He would like to do the same but is unsure whether he can compel his staff to work longer to cover the extended hours.