robbryanassociates

Changes to employment terms and conditions

In contracts, covid-19, Employment law on September 1, 2021 at 9:15 am
In normal circumstances it is not possible for the employer to make changes to the employment arrangements without a) a contractual clause providing for changes or b) the consent and agreement of both parties.
 
Sometimes a working arrangement changes and nothing is written down or recorded about the change. The written particulars of employment are important. If there is a conflict arising from what the contract requires the written terms will normally prevail. However, there is a long-established situation called “custom and practice”. It is possible for something that is done regularly and consistently over time, that is notorious (i.e. known to all) to be incorporated into a contract. 
 
There is much said about “hybrid working” and some academics and employers have stated that work will never be the same again. One survey report identified that circa 40% of employees will leave their current employment if they are unable to work remotely. Other labour market reports warn of significant churn in the employment market with employees stating an intention to leave their current workplace. The bigger debate around this is outside the scope of this article.
 
There is no single solution for ALL employers here. Some work lends itself to homeworking and variable hour working and other work does not. Most job roles have multifaceted elements to them meaning individual job roles are more blended and incorporate technology tools more than even 5 years ago.
 
We advocate discussion and an alignment of expectations. Flexibility has the potential for benefits and performance improvement. The other side of the coin is managing remote working is challenging and people benefit from meeting for working collaboration and also social interaction. It’s all too easy to say well let’s have the best of both worlds and mix it up a little.
 
We suggest when exploring flexible working, keep an eye on any core irreducible minimum involvement in office attendance, in person meetings, client service delivery and inter-employee / intradepartmental collaboration. A further period of temporary working and review could help all concerned arrive at the best working solution. Define what the new working relationship looks like in specific terms.
 
Your new agreement working agreement will be either a temporary conditional change subject to review of a permanent change to terms and conditions. So, write this down and record it as an amendment to terms and conditions of employment.
 
I opened with changes to the employment contract requiring consent and agreement. There is an exception to this. An employer may be faced to a compelling reason to reorganise the workforce in response to new ways or methods of working. Faced with reduced demand, a business may be compelled to “fire and rehire”. This term surprises many people and suggests that employment contracts can be torn up at will.
 
This process involves consulting with employees and serving notice of termination for the current job and offering new work on different terms of engagement. The strategy is not without risk, if the employee doesn’t want to work on less favourable terms, they may decide to claim they have been unfairly dismissed, even start under the new terms and bring a claim against the employer for the loss of the first job.
 
Generally speaking, if the majority of the workers agree to be engaged on new terms, rather than have no job at all, this points towards a reasonable and fair process. Should a group of employees be retained in employment, perhaps on reduced hours, rather than being made redundant this process may serve a useful purpose. The employer in this process is not selecting those to retain but applying equally the arrangement to the whole group of employees.
 
The government has commissioned a report from ACAS on the ‘fire and rehire’ practice to consider if the process is being abused. The practice has been open to employers for years. The conclusion is that there is nothing in the report to recommend any legal reform. Perhaps the timing of this report is unhelpful as in reality the furlough scheme has mitigated the use of the strategy from March 2020. Before the announcement of a ‘furlough scheme’ at half past five on a Friday afternoon, fire and rehire was perhaps the only available alternative for many businesses. From the end of September 2021 this may well be the only option available together with compulsory redundancies.
 
Key Action Point
The end of the Job Retention Scheme may well lead to a need for employment contracts to be varied by a written agreement to reflect working hours, the place or places of work and any fundamental changes in duties.  

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