Forced to accept change of contract to include a minimum of 6 hours unpaid work per week

[The Phantom]

Just a quick query. My partner has been summoned by his manager and been advised that the company intends to change all contracts of employment to include a clause that everybody has to do at least 6 hours unpaid overtime per week.

Everybody has been told to accept this change.

 

Does he have to sign this new contract ?

[obiter dictum]

How many hours do you normally do a week and what line of work

[Mr.P]

[...]everybody has to do at least 6 hours unpaid overtime per week.

 

Would the additional six hours per week take his average earnings below the NMW ?

 

If so, then the employer would be breaking the law. It is in effect, a pay cut - Is he in a union ?

[tobyjugg2]

The following might be relevant :

http://www.inbrief.co.uk/employees/conditions-for-over-time.htm

http://www.acas.org.uk/media/pdf/8/6/Varying-a-contract-of-employment-accessible-version.pdf

[Conniff]

How many hours does he do now?

Has he opted out of the 48 hours max worked regulations?

[obiter dictum]

Employers only normally impose this contractual term if they have raised the basic rate of pay as compensation

[steampowered]

The answer is no, he does not have to sign. Employers cannot unilaterally impose a change to the employment contract.

 

However, if he continues working without objecting to the change, he will be deemed to have accepted the contract change by his conduct (even if he never signs). If he wants to object, he would need to make it clear that he does not accept the change. In this case, if the employer stops paying for worked overtime, he could sue the employer for owed overtime payments later on.

 

You have to remember that employees with less than two years' service can be dismissed at any time with no legal recourse for unfair dismissal (with only a few exceptions like discrimination or claiming the minimum wage). So, if he has less than 2 years' service and refuses to sign, he could be sacked and then re-offered employment on the new contract.

[obiter dictum]

But would he not have to raise a claim with the Tribunal Service within three months less one day from when they stopped paying the overtime??

 

How long can you continue working under protest before considering resigning and the dreaded constructive dismissal?

[Conniff]

I think he needs to ascertain if the work is for 'free' ie slavery or not being paid at overtime rates.

[steampowered]

But would he not have to raise a claim with the Tribunal Service within three months less one day from when they stopped paying the overtime??

The time limit for Employment Tribunals is indeed three months minus a day. But for unpaid wages claims, unlike unfair dismissal claims, you have the option of claiming in the small claims court instead. The time limit for doing that is six years.

 

How long can you continue working under protest before considering resigning and the dreaded constructive dismissal?

Excellent question. There is no clear answer, but potentially quite a long time. There was one case in particular which went up to the top court where an employee who objected to a drop in his salary was allowed to claim unpaid wages going back a full year - see https://en.wikipedia.org/wiki/Rigby_v_Ferodo_Ltd.

 

The important thing is to make it known clearly quite soon after being asked to sign the new contract, that the change is not accepted.

[obiter dictum]

[The Phantom]

His current contract is for 39.5 hours per week.

He was asked a while ago to do at least 6 hours overtime per week which would be unpaid. He refused as it was not in his contract to do so. The company claimed it was. He asked them to show the relevant term in his contract that stated it. They couldn't do it as there was no such term.

Now they said they will in that case change the contract and include it and he would be expected to sign it with all the other affected employees. They have said they had already checked with an arbitrary institution and were told it was not unreasonable to ask for 6 extra hours per week . When asked they said they wouldn't disclose the institution they had asked about this. But as they were told by this arbitrary institution it was Ok they would now expect everybody to sign it.

He has so far refused. He is not in a union but one of his co-workers is, so he will check with his union rep.

The company does not allow any unions in the workplace by the way.

Edited July 18, 2015 by The Phantom
typo

[The Phantom]

The six hours would basically extend his working week from 39.5 to 45.5 with no extra pay.

[Lapsed Workaholic]

Just a quick query. My partner has been summoned by his manager and been advised that the company intends to change all contracts of employment to include a clause that everybody has to do at least 6 hours unpaid overtime per week.

Everybody has been told to accept this change.

 

Does he have to sign this new contract ?

Phantom, have you read the ACAS advice that Tobyjug provided a link to in Post # 4. If you have, what is your opinion of it and has it helped you to reach a conclusion as to what you could or should do next?

[Conniff]

So he is salaried and they want to add another hour per day for the same pay.

 

Are there weeks when he doesn't work the full 39.5 ?

[The Phantom]

No, he is contracted to work 39.5 hours per week according to his contract. Full time permanent position. He has worked there for almost 25 years on that contract. He is coming up to retirement age in September but would like to continue to work but now is wondering whether he should

[The Phantom]

yes, he is salaried, they want him to work another six hours per week for no extra pay, calling it unpaid overtime

[Conniff]

From ACAS:

 

How can a contract be altered?

 

Most changes to an employment contract require the consent of employer and employee.

 

They can be agreed:

• either verbally or in writing (although written consent can avoid later disagreements)

• through collective bargaining arrangements (see p51)

• when the employee works in accordance with the new terms without objecting to the changes

• through a term which provides for a variation in the contract, eg a clause specifically allowing an employer to change an employee’s duties.

 

It is important that changes are discussed and agreed where possible with the jobholder since disagreement over the changes may lead to the ending of the contract and employers facing claims for unfair dismissal and wrongful dismissal.

 

Wrongful dismissal occurs where an employee is dismissed and the terms for ending the contract have not been observed. Action for wrongful dismissal can be taken in the courts or, if the employment has been terminated, through an Employment Tribunal. But there may be occasions when employers feel that changes to the contract are essential to the operation of the business – perhaps arising from changes in technology.

 

In some circumstances an Employment Tribunal may consider that it was not unreasonable to alter the contract without the employee’s consent. However, in view of the potential problems, any decisions concerning change where there is no employee agreement require very careful consideration and discussion with those concerned.

[The Phantom]

So basically if it comes to it a tribunal would have to decide whether it was reasonable or not as there is no real definition of 'reasonable' in such a case.

The employees obviously think it is unreasonable and the company thinks it is reasonable.....

May be worth getting some advice from a solicitor on this.

[Lapsed Workaholic]

A contract can't be unilaterally altered by either party to it unless there is a clear and unambiguous clause written into the contract, with the consent of both parties, already to allow for that to be done.

Otherwise, unilaterally altering a contract could be construed as a breach of contract.

The arbitrary institution that advised them otherwise must be a right shower of bankers.

You say that your partner reaches retirement age in September, about 8 weeks or so. He could:

(a) Agree to a change in his contractual terms for a compensatory consideration (the equivalent of 8 weeks X 6 hours pay).

(b) He could inform his employer If the alteration is imposed he would seek legal advice on the efficacy of leaving immediately and suing for breach of contract and that this could cost them dearly for expenses and any losses incurred by him and legal and court costs for both parties.

They obviously have no respect, regard or consideration for your partner otherwise they would be arranging to cut his work-load rather than increasing it at this time.

[The Phantom]

You are correct to say they have no respect or consideration at all. They made loads of people redundant and now want to increase the working hours of the rest to make up the shortfall with no extra cost to them, i.e. get them to work longer for no pay.

They call it compulsory unpaid overtime, to me it just looks like extending the working week by six hours for no extra pay.

They have a meeting next week where the details will be explained to the staff, they have already said they won't disclose who the arbitrary body was that advised them. If it was ACAS why not say so.

My partner says he won't be signing the new contract, so they will probably dismiss him and offer him a new contract with the new details.

As he is not in a union he will have to see an employment law solicitor.

Yes, he is due to reach retirement age early September this year

[Emmzzi]

Is he at or near NMW?

[ericsbrother]

is there a company pension scheme? If so what benefits would be lost by being dismissed now? It would focus their minds a lot if they thought that in your partners case they were going to lose a fortune compared to any possible gain and agree to keep him on the existing terms. He may have to agree not to tell everyone else but it is only for a short while. Not blackmail, just economics.

[The Phantom]

He is above the minimum wage, he has been there for near enough 25 years so is on a good salary now.

Yes, there is a pension scheme which he is in.

I think (having read some information on the links posted earlier in the thread) that they may well dismiss him if he is not signing the new contract, but he will be able to bring unfair dismissal claim.

I told him to go through the company grievance procedure first and make sure everything is done in writing to build up a paper trail, just in case

[ericsbrother]

He should also contact the pension provider or trustees and "ask" them about how these unlawful changes to his contract will affect his pension and what will he get if he is sacked for refusing the unlawful changes and could he take the pension immediately if dismissed.

The pension co will probably have a clause that makes the company pay in a bit more into the pot under such a circumstance and as said, it could well be economic stupidity to then go after this person when all it will get them is pain and suffering additional cost and a couple of court cases to defend.