A change of employment contract can raise significant concerns with employees.
In most cases, your employer cannot lawfully change your contract terms without first having your agreement, unless your contract allows them to do so under a specific ‘flexibility clause’.
The flexibility clause relied on must permit your employer to change the particular term in question.
To ascertain if your employer has a contractual right to make the change, you will need to refer to your employment contract. Where a relevant clause is identified, you will need to understand if the wording of the term supports the change and if the term includes any additional provisions or requirements in order for the change to be made, such as giving you notice.
If the wording of the flexibility clause is not clear and does not support the change being proposed, you should be able to make a challenge.
In some circumstances, the change may be implied where you have already worked under the new or changed conditions for a significant period.
This is a highly technical area requiring specialist legal advice to understand your position in light of previous tribunal rulings and to understand the obligations on you in order to bring a claim, such as following the correct complaints procedure.
Change of Employment Contract: What happens if I accept the new contract terms?
If you agree to the changes, the new term should be incorporated into your contract of employment and you should be given a copy within one month.
What happens if I don’t accept the new contract terms?
If you have concerns about the proposed changes you should raise these with your employer as soon as possible. Check whether the term in question is a flexibility clause, potentially enabling your employer to bring in the change without your agreement.
As with most workplace disputes, you are expected to take steps to try to resolve an issue informally with your employer in the first instanced. If you are a member of a trade union, you should also make them aware of your concerns.
Talk to your employer, be that your manager, supervisor or HR, to raise your concerns about the proposed changes. Highlight the effects the changes will have on you and make suggestions for alternatives that could be mutually agreeable in the circumstances.
Where this fails to produce a satisfactory outcome, you could look to raise a grievance under your organisation’s internal procedure.
While you remain in dispute, it may be appropriate to state formally that you are ‘working under protest’ and that while you continue to do your job, in doing so you are not accepting the change in terms.
What is ‘working under protest’?
If you are formally challenging your employer’s request to change your contractual terms and conditions, you can continue to work for them while the issue is being handled without risk of being deemed to have accepted the new change.
This is called ‘working under protest’. It is a temporary status applicable only while the matter remains unresolved. To rely on working under protest, you will need to make your employer aware of your objections to the contract change. You should do this in writing on a regular basis, for example each time you are paid, to reconfirm your position.
What can I do if my employer has breached a term of my contract?
If you can show your employer has breached a term of your contract, you may able to bring a claim against them for damages.
This applies where the term is an express provision within your signed contract of employment or where it is a right implied by law, such as your employer’s duty to pay your wages.
In most cases, employers and employees are expected to try and resolve workplace disputes informally as soon as they arise. Where this fails, the employer should have an organisational internal grievance procedure to allow employees to raise a complaint formally.
Only where these routes have been exhausted would employees usually pursue litigation, either bringing an employment claim to the tribunal and/or a claim for breach of contract.
Your legal options will also depend on the nature of the dispute with your employer, and how your employer handled the issue.
Can I ask for changes to my contract?
It is possible to request changes to your contract, but your employer will have to accept these and they are generally under no legal requirement to agree.
Much will depend on the nature and circumstances of the change.
If you have already been working to different terms, for example, you have started a different role for the same employer, it would be reasonable to ask that this change is reflected formally within your contract.
If you want a flexible working arrangement, you should follow your employer’s procedure to make a flexible working request.
In most other circumstances, it will be a matter of speaking to your employer about why you are asking for the change. You will need to consider the implications of the change for your employer and any concerns or objections they may have to the change, and be prepared with ideas to compromise that may facilitate acceptance.
If you cannot agree, you may consider escalating the issue through formal internal channels, such as raising a grievance.
What are the different types of employment contract?
Your rights will be determined in large part by your employment status and the type of contract you have.
In today’s economy, a number of different employment contracts are used. These include full-time and part-time permanent contracts, fixed-term contracts, zero hour contracts and contracts for agency staff, freelancers, consultants and contractors.
Permanent employment contracts apply for example where an individual is employed for regular hours for a salary or hourly rate on an indefinite basis and until such time as the employer or the employee no longer wish the employment to continue. Permanent contracts can apply to full-time or part-time employees. Employees with a permanent contract have full statutory employment rights.
Fixed-term contracts have a set end date or endpoint when the employee and employer have agreed the contract of employment will be terminated. The term can usually be extended by mutual agreement. Fixed-term employees are entitled to the same legal protections and rights as permanent employees and should not be offered less favourable terms due to the fixed-term basis of their employment.
Note also that fixed term contracts of four years or more may be automatically deemed a permanent contract.
Zero hour contracts, also referred to as ‘casual’ contracts, are used where the employer wants to employ the individual but they cannot commit to a minimum or regular number of hours. Zero hour workers still benefit from statutory employment rights including minimum wage, statutory sick pay, where eligible, and statutory minimum notice periods.
What should your contract include?
A contract of employment does not have to be written but it is best practice for all employees to be provided with a written document setting out the terms and conditions of their employment. This helps to provide clarity over the rights and obligations of both the employer and the employee and to avoid misunderstandings that can result in dispute.
By law, employees with an employment contract of one month or more must be provided with a ‘written statement of particulars’ within 2 months of the start of employment. The document should include specific information relating to the employment including, among other details, the employee’s and employer’s names, employment start date, holiday entitlement, place of work and whether there may be a requirement to relocate.
Without a written statement of particulars, should an employment claim arise, the tribunal will decide on the terms to be applied when deciding the case.
Workers, however, are not entitled to a written document and should take advice on their status and implications for their employment rights.
Employment contracts can vary by organisation, job type, and employment status of the individual.
As a minimum, a contract should include:
- Your employer’s name and contact details
- Your name
- Your employment start date
- Job title and description of duties
- Working hours
- Place(s) of work
- Details of pay – amount, frequency
- Details of any continuous employment that will apply
- Holiday entitlement
As well as the principal elements of the contract, your employer will also have to provide information specific to your employment and their duties as an employer. For example:
- Notice period both for employer and employee
- Duration of employment
- Policy on sick leave and pay
- Disciplinary procedures
- Grievance procedures
- Pension scheme arrangements
These do not all have to be in the same document, but if they are separate, it must be made clear to you where to find the most up to date version, for example, in your employee handbook.
Change of Employment Contract: Seek advice!
DavidsonMorris can help if you have concerns about your contract or changes that are being made to your contract by your employer.
We can advise on your rights and the options open to you to resolve the issue.
Contact our employment lawyers for advice.