Making a change to a term in your employees’ contract, such as changing working hours, is called a ‘variation of contract.’ If their contract contains an agreed number of hours they are to work each week, then you cannot arbitrarily reduce them. You must follow a fair procedure to change contract terms and ensure you are not breaching employment legislation.
Can you change employees’ working hours?
As an employer, the first thing you should do is check your employees’ contracts to see if there is a variation clause.
A variation clause allows you to make potential changes to an employment contract, providing you adhere to the provisions contained within the clause.
Where there is a variation clause in the contract, you will need to ensure you comply with the provisions including the stated notice period. If the variation clause is silent as to a notice period, you must decide how much notice to give the employee. They may need time to make arrangements at home (for example, childcare or other caring duties may be impacted) and get used to any proposed change.
How much notice is needed to change working hours?
The law states that you should give the employee ‘adequate’ or ‘reasonable’ notice to vary a contract term. However, it stops short of providing a definition of what is ‘adequate’ or ‘reasonable’. This is because it will mean something different within different sectors, industries and professions.
It is always advisable to set out any proposed changes in writing and ensure your employees gives their consent to the change in writing.
Varying working hours with employee consent
Where you have the agreement of the employee, you should update the terms of your employees’ employment conditions with a written statement. This is usually made up of the main document and a wider written statement. It is important to note that it is not an employment contract.
You will then need to write to your employees within one month telling setting out the changes and the date the changes will commence.
Can you change working hours without employee consent?
You should always ensure you consider your employees’ rights when considering making a fundamental change to their contract of employment, including:
- If your employee(s) objects to the proposed change to their working hours they must inform you if they are working under protest. This means that while they continue to work for you, this does not mean they have accepted the new terms nor does it mean that have waived any potential breach of contract. They should make it clear they do not accept the change in writing.
- There is no prescribed or strict time limit on how long an employee can work ‘under protest’ and each case will be different. Although in the case of Rigby v Ferodo , the employees managed to work ‘under protest’ for several months.
- The employee must work with you to try and find a resolution as soon as they are informed about the change in working hours.
- Some employees may have initially agreed with the change in working hours and then changed their mind. If they have been working under the revised hours before registering they are working ‘under protest’ they may be in some difficulty justifying their original stance to an employment tribunal. However, where the change did not have an immediate impact on the employee they may not be bound by the change.
- Employees’ are protected against discrimination under the Equality Act 2010. This includes, sex, gender, and religious discrimination, and equality for disabled employees.
What if there is no variation clause?
This is a more complicated situation and requires delicate handling to ensure employees’ rights are not breached.
Under the Equality Act 2010, employees are protected against discrimination. If an employee believes they have been discriminated against because of a ‘protected characteristic’, then they may be able to make a claim for discrimination.
The following characteristics are protected under the Equality Act 2010:
- Gender Reassignment
- Marriage and Civil Partnership
- Pregnancy and Maternity
- Religion or Belief
- Sexual Orientation
For any proposed change to working hours without a variation clause you should consult your employee(s) before making changes to their contract. Without consultation, employees that resign as a result of the change may be able to bring a claim for constructive dismissal.
The notice period for the change to working hours must also be agreed with the employee in advance of any change being imposed. The general rule here is that you must provide a minimum of one week’s notice for each completed year of service and at least the same amount of notice if you were dismissing the employee.
Can I end a contract and re-employ someone on new terms and conditions?
It may be possible to terminate an employee’s contract and re-employ on new terms and conditions but this course of action typically carries considerable risk, requiring specialist legal advice.
If you are dismissing any employee it is a legal requirement that you follow the correct redundancy procedure. The redundancy process is used to reduce a workforce and it should not be used to get around a change in working hours when the position itself still exists. If in doubt, it is advisable to consult an employment specialist.
If you dismiss an employee and attempt to re-hire them in this way, they may be able to take their case to an employment tribunal and make a claim for breach of contract or unfair dismissal.
Flexible working requests
If an employee cannot comply with a change to working hours and has worked for you for the preceding 26 weeks, they may request flexible working as a way of circumventing the change. If they do make such a request it could be construed they have accepted your change and are now requesting to change it again. It is an important consideration because it makes it difficult or puts an absolute bar on employees bringing certain types of claim.
You have three months from the date of the request to provide the employee with your decision. If it is refused, you must give one of the permitted business reasons:
- Burden of costs
- Effect on customer service detrimental in nature
- Staff recruitment issues
- Lack of existing staff able to cover or perform the employee’s duties
- Negative impact on quality
- Negative impact on performance
- Lack of work during proposed work period
- Existing structural changes to the business
The response does not have to be in writing but good practice suggests it should be. It is important to understand that the employee does not have a right to appeal your decision. Although they may be able to do so if you have not followed correct procedure as set out in the ACAS guide by not giving one of the permitted reasons, by taking longer than three months to make a decision or giving factually incorrect reasons. Although breaching the ACAS procedure is not unlawful, a tribunal would take into consideration whether an employer had followed the correct procedure when making its decision.
Legal risks of changing working hours
What happens if you have tried to enforce changes upon your workforce without agreement or you have re-employed them on new terms and conditions?
Initially, it is always better to try and solve disputes about changes to a contract or changes to working hours by talking things through with your employees, either on a formal or informal basis. If that fails, then mediation should be your next step.
Ultimately, if you have made a change without the agreement of your employees which cannot be resolved through discussion or mediation, then they have the right to resign and claim constructive dismissal and take their case to an employment tribunal.
The employee will have three months from the time their employment ended or of the problem occurring (less one day) in order to make a claim, this is known as the ‘limitation date’. Before making the claim the employee will be offered the chance to settle the dispute without going to court, this is done through ACAS’s free early conciliation service. Once ACAS have been notified about conciliation, the limitation date is extended to allow time for conciliation to take place.
ACAS will mediate between the parties and give you an opportunity to reach an agreement, if this is not possible then it is up to the employee to decide whether to make an application to an employment tribunal. It is important to note that ACAS settlements are legally binding and enforceable in court.
An employer does not have to agree to attend a conciliation meeting or engage in the process at all. If you decline early conciliation, then ACAS will issue a certificate to the employee which allows them to complete form ET1 if they decide to continue with their application. An employer may decide to make a counterclaim against the employee and has six weeks from receiving the employee’s claim to make it.
The following remedies can be made by an employment tribunal if you lose your case:
- A compensatory payment to your employee. This depends on the type of case and how much money the employee has lost. It also takes into consideration the employee’s age, length of service and salary at the time their employment ended.
- Compensating your employee for any witness expenses they may have incurred
- Improving the employee’s working conditions
- Giving the employee their job back
If an employer does not agree with the employment tribunal’s decision they have 14 days from receiving it to appeal the decision. There must be good reason for it to be reconsidered, e.g. if you believe the tribunal has made a legal mistake, you were unaware of the hearing or new evidence has come to light. You cannot, however, appeal simply because you do not agree with the tribunal’s decision.
Coronavirus Job Support Scheme
Reducing working hours may be an option for employers struggling under the current economic challenges.
Employers may be able to take advantage of the Government’s new job support scheme by reducing employees’ ‘paid for’ working hours, and in doing so temporarily reducing wage bills.
The Government’s aim is to protect ‘viable’ jobs where employers face reduced demand for goods or services as a result of Covid-19. This means that businesses will continue to pay their employees for hours worked but the cost of contracted hours not worked will be split between the Government (via wage support) and the employee (via a reduction in wages). A third of hours not worked will be paid by the Government up to a cap and ensure employees receive a minimum of 77% of their usual wage.
The scheme is set to run from 1st November 2020 for six months.
DavidsonMorris’ employment law experts work with employers to support with workforce management issues, including making contract changes to terms such as working hours. Varying contractual terms can present legal risks and if not handled correctly, can impact workforce morale and performance. Working closely with our HR specialists, we provide a holistic approach to managing and effecting change. For advice on making changes to your employees’ contracts, speak to us.
How much notice is needed to change working hours FAQs
Can an employer change contracted hours without consent?
No, an employer has to either give notice in accordance with a variation clause or give, ‘adequate’ or ‘reasonable’ notice to change contracted hours preferably after discussion and agreement of employees.
How much notice is needed to change contracted hours?
If the notice period is specified within the variation clause, then that notice period should be followed as a minimum. If there is no variation clause within the employment contract or there is but it is silent as to a notice period, then you must allocate one week’s notice per year of completed service. Or, where one year has not elapsed, the period of notice stipulated within the contract if you were dismissing the employee.
Can an employer change shifts without asking?
If you are changing the number of hours worked (e.g. reducing contracted working hours) then you will need to follow the correct procedure to vary those working hours without affecting your employees’ employment rights. You must give the employee at least the number of hours contained within the contract subject to any variation. There is also the opportunity to join the Government’s job support scheme, which as discussed above, allows the employer to continue to pay employees for hours worked with the Government topping up employee’s wage to a minimum of 77%. It is an important consideration that this does not change your employees contracted working hours and you would need to follow the correct procedure if that is what you intended to do longer term.
Last updated: 7 October 2020