Urgent - change in contract advice

[ConnyWonny]

Hi all,

I'm looking for some advice for somebody regarding a proposed change in their contract/working hours.

They currently work a 40 hour week on a 3-shift rotating contract comprising 6-2, 2-10 and 10-6 (nights). The company are proposing changing this to an annualised hours contract averaging 44 hours a week. This is made up of the original 40 hour shift, plus 4 hours at the company's discretion. They have sited changes in workloads etc for this.

At the moment there is roughly a 50-50 split between the contracts that the workforce are on - half are already on the 'new' 44 hour contract, half are on the 'old' 40 hour one. The 44 hour contract is unpopular as the company can call you in at short notice whenever they like. Some weeks you might just do the flat 40 hours, others you may be called in for 12 hours extra on a weekend. The company keeps track of hours owed/in credit. The 44 hour contract attracts a higher wage, as it's more hours so it's financially fair.

The problem is, the company have issued a statement saying that they want everyone on the 44 hour contract by 13 Aug and anyone not willing to sign it will have their 40 hour contract terminated and will be deemed to have resigned. They will then work their notice (dependant on length of service) and leave the company. No redundency money will be paid.

Is this legal? Can the company do this?

Thanks for reading!

[path_finder]

Hi

I think it would depend on when they were told about the changes and what their terms and conditions of employment are. Most contracts of employment will say that you will be given 30 days notice of any changes, and depending on how many people are affected by the change there should be a period of consultaion. If they do not agree to the new terms, then they will have deemed to have resigned.

[ConnyWonny]

I believe they were told on Monday (21/07) that they had until 13/08 to sign.

[path_finder]

do you know what it says about changes to Ts & Cs in their contract of employment?

[ConnyWonny]

I have a copy of an old-style contract in front of me. The 44 hour one is basically the same, save for the extra 4 hours obviously. There is a section explaining how the company will keep track of how many hours everyone is working too.

[elche]

An employment contract, is just like any other contract, not able to be changed unilaterally. Thus if one side, the employer, changes a fundamental term of the contract (e.g. hours per week), then this can only be done by mutual agreement with the other contracting party – the employee.

That said, the courts do recognise that employment contracts are dynamic and can be long running. Thus unilateral changes are allowed but there must be an objectively reasonable reason for the change, and the employee should have been consulted re the proposed changes. There seems to have been little consultation here. I advise clients at work that 28 day consultation as a minimum for changes in T & C’s. Of course this can vary with size of workforce, and the length of service of each employee affected.

If a change is imposed the employee has 3 options, to continue to work and say nothing, continue to work, but make it clear this was under protest, or resign and claim constructive dismissal.

All join a decent union soon!

[path_finder]

sorry, what i meant was, does it state in the contract of employment anything about timescales for changes. e.g. my contract of employment says:-

The company may make changes to your contract of employment, if we do make any changes, you will be give 30 days written notice.

So, when they changed our working hours, they issued a change of contract of employment letter. The letter stated when the new shift would start and gave at least 30 days notice. Anyone who did not sign and return the letter was deemed to have resigned.

I believe that if it affects more than 100 people, there has to be a 90 day consultation period.

[ConnyWonny]

I believe most of the workers are in the unite union, however it isn't particulaly strong.

The 40 hour contract I have here states that the company can change the shift pattern between the current 3-shift model, a 4-shift one which is a 'continental' one (12 hour shifts, 4 days on, 4 days off) and a dayshift one (8-4.30 Mon to Fri). It outlines the different shift premiums each one attracts and states :-

'The Company has the right to transfer you to or from any of the working patterns at any time depending on the needs of the business.'

[elche]

Ok then... the next question is, "Has that calsue ever been invoked?" If I had worked there for 5 years+ and never trasfered then I would argue custom and practice overides this. Just like the unused mobility clauses become unenforceable.

[path_finder]

Personaly, i wouldn't have signed a contract that says that they can change your working hours whenever it suits them due to business needs. But, as that is what it states in their contract of employment, ( and they have agreed to it) i don't see that they have very much room to object.

[ConnyWonny]

Well as it affects a number of people, it will have been used for some but not others. The person who's contract I have here has worked there for 8 years, initially on the 3 shift model, then changed to the 4 shift continentals and is now back on the 3 shift one. These changes were made by the company, not requested by the employee.

He believes that the 44 hour contract is outside of these guidelines anyway, as it is an annualised flexible contract, and not mentioned anywhere in his original contract?

[elche]

Look how many factory workers read the contract before signing? Most employeees never even noticed this. Where was the clause on the contract - was it bold and obvious.

If this is a) a clause burried in the contract, and b) has never been used in say teh last 5 years then you can argue that via custom and practice this clause has become unenforcable.

Employment contracts are living things - imagine the worker who has been on one shift for 20 years and has never been asked to change, yet has this clause in his contract!

[ConnyWonny]

For some of the workers, that is exactly the case.

Legally, can the company do this. Can they deem someone to have resigned when that person has not done so? Some people cant work extra hours or weekends for a variety of reasons and wouldn't have taken the job if they had been expecting to?

[elche]

They can take whatever view they want. Call it a resignation or a dismissal. If you bring a claim then it will not matter what 'label' the employer attaches to the occurence of you ceasing to be employed.

If a change is imposed the employee has 3 options, to continue to work and say nothing, continue to work, but make it clear this was under protest, or resign and claim constructive dismissal.

[ConnyWonny]

elche, do you think the workers would have a strong case for constructive dismissal?

[elche]

Well you would have to look at this on a case by case basis. At one end of the scale you have your worker who by your own admission has been changed shift 3 times in last 8 years = weak case.

At the other end you have the 20 year worker who has never had a change imposed. This person would probably have a better than 50% chance.

BUT - I would need much more info to reach a considered conclusion - employment contracts, length of service, staff handbook, custom & practice in the industry, reason for the change, amount of consultation, minutes of consultation meetings - These would all be relevant in assessing chances of claiming constrcutive dismissal.

Kick your union rep up the bum and tell him to get the union's solicitor to advise you properly.

Please click on the scales if I've been helpful.

[ConnyWonny]

Ok, thanks for the advice.

I think their main grievence is that it's not just the hours that are changing, it's the whole working culture. An employee could now turn up for work on say a Tuesday afternoon and be told they're working all day on Saturday etc. Apart from the extra hours of work it impacts on family/social life too.

Some people only see their kids on weekends, some have season tickets for football or like to go out on a weekend, some simply don't want to work them.

One other point actually, the contract I have here states that the 3 shift system is to be worked over 5 days a week - this new contract could see people being asked to work 6 days.

[ConnyWonny]

Does anyone have anything to add on this subject?