Employers are seeking flexibility from staff, but how can operators act fairly? Ed Cotton explains the requirements for changing hours, duties or pay.
As we navigate our way through the easing of coronavirus restrictions, our staff requirements are changing, often at the last minute. Is it OK to change people's duties, working hours and pay, or do we need to make this more formal?
There might be clauses on flexibility written into your contracts on which you could rely, but it is important to bear in mind that there is an implied duty to act reasonably as an employer. Imposing a substantial or fundamental change to the contract could give rise to claims for constructive dismissal or discrimination.
As businesses move through the various stages of lockdown easing and any local restrictions, there may be a need to employ people on a different basis to before the pandemic or even the last 18 months. For example, you may have a reduced workforce due to people being on furlough, and therefore need people to retrain quickly and pick up some of the remaining tasks.
The first step is to have an open, honest and transparent conversation with staff about what you are proposing and, crucially, why. If people understand your financial or operational situation, for example, they are more likely to buy into and agree to the changes.
If people understand your financial or operational situation, they are more likely to buy into and agree to the changes
If a member of staff does not agree to the proposed changes, there is a process called ‘dismissal and re-engagement', whereby you terminate employment and offer to re-engage your employee under new terms.
However, this does not offer the flexibility that many businesses will be looking for, given the remaining uncertainty over new variants and the fact that many businesses are exploring new ways of offering services. It should be used with caution and only if the changes are part of a longer-term shift in the business. Staff might also be wary of this approach, and many businesses will not be able to afford to lose their best employees at this time.
Explain why the changes are needed.
Be clear about whether the changes are temporary or permanent.
Explain the process for reviewing when the changes will come to an end.
Seek agreement to any changes.
Talk through any questions or concerns.
Make any reasonable adjustments necessary to address those concerns.
Record any agreements in writing.
If you consider dismissal and re-engagement, you will need a justifiable business rationale and you must consult with staff to reach agreement to the changes.
If you cannot reach an agreement, you must serve the employee the notice period under the old contract to accept the new one.
Collective consultation can be triggered if more than 20 people at one establishment are impacted by dismissal and re-engagement. This means you must consult any recognised trade union or, if there isn't one, you must consult employee representatives and follow the prescribed statutory consultation periods.
Ed Cotton is a partner at UK law firm TLT.
- 07920 072 414
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