Changing terms and conditions of employment
Published Oct 25, 2022
Employers may wish to change employees’ terms and conditions of employment for a number of reasons. This could include a change in the amount or type of working hours, a reduction in pay or level of benefits, or a change of duties due to changing business needs.
It doesn’t matter how important or valid the change is, it can be problematic if employees oppose it. Where the change is clearly beneficial to the employees, the variation of the contract is unlikely to face a challenge. Carefully consider the legal position when driving through any change, communicate that change in full and seek employee agreement.
Some things to consider:
- Be clear about the reasons for making the change and ensure there is a genuine and substantial business reason for doing so.
- Think about the process that will need to be followed and plot out actions and expected timeframes for the change.
- Consider if there is a need for individual or ‘collective / group consultation’.
- Check if the employees involved have been subject to a TUPE transfer – even if the change is positive, you may be in breach of TUPE regulations if the change is due to TUPE taking place.
- If acting on a contractual clause that authorises the variation, still consult with employees and seek to gain their agreement.
- Act reasonably otherwise you could leave yourself open to claims via an employee tribunal.
- Consider potential discrimination i.e. changing working hours or shift patterns could constitute discrimination if it makes it more difficult for those with childcare responsibilities to attend work.
- Obtaining the employee’s express consent will always be the safest way to make contractual changes.
- If employees consent, confirm the new terms and conditions in writing and ensure you capture their consent via online systems or a signed agreement to be placed on the individual’s employee file.
- As a last result, consider if it may be necessary to dismiss and reengage employees giving the required notice. Careful consideration should be taken before engaging in this method.
- If dismissing and reengaging, ensure to pay the employee appropriate notice of termination. Any new contract must grant the individual continuous service from their original employment start date.
If you are considering making changes to employee terms and conditions, please seek advice or training options from your HR advisor.
Source: Nicola Harding