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Ben Jones
Ben Jones, UK Lawyer
Category: UK Employment Law
Satisfied Customers: 47881
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my employer wants to change my terms of employment,( I have worked same unsocial hours for

Customer Question

my employer wants to change my terms of employment,( I have worked same unsocial hours for 12 years) which will result in me having to work during the day and pay out for childcare( i currently work 6-midnight and husband home in time to care for our children aged 8, 11,12, 15 and as a result be working for less than half my pay, they say "due to needs of the sevice" they are going to employ a night worker instead of me working only until midnight- I am medically unable to work night shifts- occupational health in agreement., do I have any redress? Also my husbands works away, and other staff although work different shifts work around their child care, is this grounds for constructive dismissal? or do I have to manage such a loss?
Submitted: 4 years ago.
Category: UK Employment Law
Expert:  Ben Jones replied 4 years ago.
Hello, my name is Ben and it is my pleasure to assist you with your question today. There are several ways in which an employer may try and make changes to an employee’s contract of employment. These are:

1. By receiving the employee’s express consent.
2. By forcefully introducing the changes (called 'unilateral change of contract').
3. By giving the employee notice to terminate their current contract and then offer them immediate re-engagement under a new contract that contains the changes.

If the employee agrees to the changes then that would usually put an end to the matter.

If the changes are introduced forcefully then the following options are open to the employee:

1. Start working on the new terms but making it clear in writing that they are working ‘under protest’. This means that the employee does not agree with the changes but is only working them because they feel they are forced to. In the meantime they should try and resolve the issue either by informal discussions or by raising a formal grievance.

2. If the changes are serious enough (e.g. a change to pay, duties, place of work, etc.) the employee may wish to consider resigning and claiming constructive dismissal. The resignation must be done without undue delay so as not to give the impression that the changes had been accepted. The claim must be submitted in an employment tribunal within 3 months of resigning and is subject to the employee having at least 2 years' continuous service.

3. Finally, if the employment is terminated and the employer offers re-engagement on the new terms that could potentially amount to unfair dismissal. However, the employer can justify the dismissal and the changes if they had a sound business reason for dismissing an employee who refuses to accept the variation in terms. This could be pressing business needs requiring drastic changes for the company to survive. If no such reason exists, the employee can make a claim for unfair dismissal in an employment tribunal. The same time limit of 3 months to claim and the requirement to have 2 years' continuous would apply.

It is also worth mentioning that sometimes employment contracts may try to give the employer a general right to make changes to the employee’s contract. As such clauses give the employer carte blanche to change any term, so as to evade the general rule that changes must be mutually agreed, courts will rarely enforce such clauses. Nothing but the clearest language will be sufficient to create such a right. Any attempt to rely on such clauses will still be subject to the requirement of the employer to act reasonably.

I would be grateful if you could please take a second to leave a positive rating. Your question will not close and I can continue providing further advice if necessary. Thank you
Customer: replied 4 years ago.
This is a general answer- please answer points raised.
Expert:  Ben Jones replied 4 years ago.
Whilst all of the above is relevant to you, a further consideration is your health position. If you have a condition that amounts to a disability in law (long term condition that substantially affects your ability to carry out your normal day to day activities), then your employer would have to make reasonable adjustments to try and assist you. If this means that you are unable to work nights and can only work days then you may certainly argue that it is a reasonable adjustment to let you continue working the shifts you work now, or at least something similar that is suitable.
Customer: replied 4 years ago.
is it constructive dismissal possibly if they make you earn much less by the changes.
Expert:  Ben Jones replied 4 years ago.
Yes, that is one of the potential outcomes. The other is claiming unlawful deduction of wages by arguing you had not agreed to these changes and the resulting reduction in pay is unlawful