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COVID-19 - Changes to terms and conditions of employment

In the first of three blogs covering workers’ rights amid changes to the employment world brought about by the COVID-19 pandemic, Ryan Bradshaw and Niall Byrne explain what the law says about an employee’s options when an employer changes the terms and conditions of employment.

Workers
Ryan is an assoicate solicitor in the employment and discrimination team. He conducts litigation on behalf of individual clients, groups and Trade Unions. Niall is a paralegal in the employment and discrimination team. 
As lockdown eases and life returns to normal, many workers are facing changes to their terms and conditions of employment. It is essential  to be aware of the terms of your employment, and your rights as a worker.

With the government’s furlough scheme closed to new applicants, and a phase-out date of 31 October 2020, workers may face redundancy (see blog on COVID-19 and redundancy) or changes to their existing positions.

Your employer may seek to:
  • Change your rate of pay
  • Change your working hours
  • Insist you work from a particular location
  • Bring you back to work part-time
  • Change your employee benefits or bonus

Even if you do not have a formal contract, there are rules which state that specific information should be provided (otherwise known as a statement of written particulars).

This includes: rates of pay (or the method of calculation), frequency of pay, terms and conditions on your hours of work, notice periods, place of work, collective agreements, probation period, holiday entitlement, sick pay.

You can request this information during employment or within three months of your leaving date. Your employer has one month to provide you with a statement specifying the above information.

If you are subject to the furlough scheme, your terms may have already been changed. This will depend on your furlough agreement, but remember that your statutory employment rights remain unchanged.

For more information on this (and more) see Leigh Day’s guide to Covid-19 and your employment rights.

What can be changed?

If your employer varies your contract without your consent, or without a clause in your contract which allows such change (a ‘variation clause’) it could be a breach of contract.

Changes are only lawful if:  Both parties agree to the change or if there is a variation clause in the contract (e.g. hours or place of work) which is unambiguous, precise and not oppressive.
(If you have never been given a written statement of particulars then both you and your employer are still subject to implied terms which arise by operation of law, past conduct, and other factors).

Neither you, nor your employer can change your contract without one of these conditions being met. If your employer tries to ‘unilaterally’ vary the terms of your contract – i.e. gives you a new contract to sign, or dismisses and re-hires you on different terms – you have a number of rights.

Duty to consult

Consultation is where employers and employees discuss planned changes, and if used effectively, work together to make any changes. It is crucial in the redundancy process and can be done individually, either informally or with the assistance with a solicitor, or collectively, such as through a trade union.

If an employer wants to make unilateral changes to the terms of your contract, they have a duty to consult with your first. This is because there should be a relationship of trust and confidence between employer and employee.

Consultation can take many forms and it will depend on the size of the employer, the proposed changes, and their impact. For example, a reduction in pay or removal of benefits would be a significant change and the duty to consult will be higher. Whereas, a requirement to work a day or two from home, or a minor amendment to hours may have a lower bar for the duty.

If your employer fails to consult, and you do not accept the new terms, you may have a claim for constructive dismissal.

What can I do if I don’t agree to the changes?

In certain circumstances your employer may seek to dismiss you entirely if you do not agree to the proposed changes.

In these circumstances you have the following options:
  • Negotiate with your employer: You may be able to negotiate terms which are more advantageous, or a settlement agreement with your employer.
  • Reject the change: You can reject the change outright, by continuing to work in accordance with your latest agreed terms and conditions. By taking this approach you risk dismissal by your employer. However, if this occurs you may have a claim for wrongful dismissal, or unfair dismissal.
  • Resign and claim constructive dismissal: You can resign in response to a fundamental breach of terms and conditions on the basis that the change is serious enough to constitute a constructive dismissal, and then, as noted above, bring claims for wrongful and/or unfair dismissal. Please note that this approach is risky and as there is no guarantee that the courts will recognise that you have been constructively dismissed - this would then affect any potential claims for wrongful dismissal or unfair dismissal.
  • “Stand and sue”: You can continue to work under the new, imposed terms but must make it clear that you are working under protest and do not accept the change. You can then bring a claim for breach of contract to reflect your losses (e.g. difference in wages).  However such claims are often brought in the civil courts and carry the risk of costs if they fail. Please note that continuing to work but failing to make your rejection clear could result in you being deemed to have accepted any changes. 

In summary, remember:

COVID-19 has affected all our home, and work lives and more changes are likely to come. However, employment rights are protected by law, and the ‘unprecedented circumstances’ of the pandemic do not mean that employers have to pay these rights any less attention.

*This post is limited to workers and employees. If you have been unfairly treated as a self-employed contractor, please do get in touch.

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