In the current economic climate it may be very tempting for employers to consider varying terms of employment contracts.

An employer may wish to vary the terms of the contract because of changed economic circumstances or due to a reorganisation of the business. Possible areas of change could include terms such as pay rates, hours or days worked, duties, supervisory relationships or place of work.

An employee may seek to vary the contract to bring about improvements in their pay or working conditions, for instance by requesting additional holidays, or to change the conditions so that they suit him or her better, eg. by requesting a change from full-time to part-time or vice versa.

It is important to note that a contract of employment is binding on both parties. This means that it is unlawful for one party to vary the terms and conditions in the contract without the agreement of the other.

How can Contracts be Varied?

An existing contract of employment can be varied only with the agreement of both parties. Changes may be agreed on an individual basis or through a collective agreement (i.e.: agreement between employer and employee or their representatives).

An employer who is proposing to change an employee’s contract of  employment should fully consult with that employee (or representative(s)) and explain and discuss any reasons for change.

Variations of contract can be agreed verbally or in writing although it is preferable for any agreed changes to be recorded in writing.

If a variation of contract affects one or more of the terms and conditions required by law to be covered in the employee’s written statement of employment particulars, then the employee must be given written notification of this. The notification must be given as soon as possible, and at any rate no later than one month after the variation is made.

Employers may have to follow collective redundancy consultation procedures, even when no reduction of the workforce is planned, if they intend to impose new terms and conditions on a group of employees by terminating their existing contracts.

If an employee finds a variation of contract unsatisfactory but continues to work under the new terms and conditions without making his or her objections known to the employer, he or she could after a time be deemed to have implicitly accepted it and it would then become incorporated into the contract.

Refusal by Employee to agree to a variation

If an employer imposes changes in contractual terms without the agreement of the employee, there will be a breach of contract.

Where an imposed change involves a significant change to the contract, e.g. a reduction in pay or alteration of working hours, an employer may well be acting in fundamental breach of contract. Where there is a fundamental breach, the employee may treat the breach as bringing the contract to an end and leave the job. In such circumstances and subject to having the necessary qualifying service, the employee will have the opportunity to make a claim of constructive dismissal before an employment tribunal. In coming to a decision the tribunal will take into account whether the employer acted reasonably in all the circumstances of the case.

Alternatively, the employee may continue to work within the varied contract but under protest, making it clear that he or she does not accept the terms and is treating the change as a breach of contract and dismissal from the original contract. In these circumstances the employee will retain the right to seek damages from the employer for a breach of contract and/or a declaration from the courts that the employer must abide by the original terms. Subject to having the necessary qualifying service, the employee may also have the opportunity to make a claim for unfair dismissal before a tribunal.

Whether or not the breach is a fundamental one, the employee may sue for damages for breach of contract in the civil courts; or if the employment has terminated, the claim can be made to an employment tribunal, which can award damages limited to a maximum of £25,000.

What can an Employer do to make contractual changes if agreement on a variation cannot be reached?

If the employer wishes to vary the terms and conditions of employment and the employee, having been consulted, objects to the variation, then the employer may decide to terminate the contract by dismissing the employee. As usual in the event of dismissal, the appropriate statutory or contractual notice (or pay in lieu of notice) would have to be given and any other contractual obligations relating to the termination of employment would have to be fulfilled.

Under the law the termination will be regarded as a dismissal and it will be open to all eligible employees to claim unfair dismissal before an employment tribunal – whether they refuse to accept the new contract and leave, or are dismissed under the old contract and re-engaged.

Help with contract variations

Deminos are able to provide full advice and support on all contractual issues.  Call us now on 020 7873 2429 to discuss your requirements.

Once you become aware of a problem with an employee or you receive a complaint from another worker or a customer, you need to investigate the situation before you take any action.

The investigation is not part of the disciplinary process and this should be made clear to employees involved from the outset.  It will only become a disciplinary issue once the investigation has been carried out and a conclusion reached as to whether formal action should be taken.

Wherever possible, the investigation should be carried by a Manager/ Supervisor or an external consultant who will not ultimately be involved in any disciplinary action.

The investigation officer should make an initial assessment of the facts with all those involved:

•    What happened and when?
•    Who was involved?
•    Were the correct procedures followed?
•    What were the consequences?
•    Any personal issues that may have a bearing on the situation.

The individual who is the subject of the investigation should be informed personally, that an investigation is to take place and a summary of what the allegation/s is/are, this can be done in writing.

Depending on the incident being investigated, consideration may be given as to whether suspension is necessary.

Gathering Information

The investigating officer should request statements from all those involved.  These should be signed and dated on each page.  It is best practise to clarify the facts with witnesses and to ascertain further information by undertaking investigatory interviews.

It is also best practise, that the individual should be invited by letter to an investigatory meeting and have the option of being accompanied by a trade union representative or colleague for support (however it is not a statutory requirement to have the right of being accompanied at this stage of the process).

In preparation for these interviews the investigating officer should draft a list of questions based on the issues raised in the witness statements.  The investigating should use these questions as a starting point but should probe further if additional issues are raised in response to questions.

Important – make detailed notes

The notes, must be written up after the interview, by the investigating officer.  Following the interview the investigating officer should send a copy of the notes to the member of staff.  The member of staff may highlight any anomalies or omissions in the notes but should not substantially change these.  The notes should be returned and signed and dated on each page to the investigating officer.

Information that is properly collated and analysed is key to any investigation.  The investigating officer must ensure that they have a clear and through understanding of the documents.

When the investigation has been completed an investigatory report should be prepared, which should be detailed and logical including conclusions/recommendations based on the findings.

It is key that any investigation is undertaken without any undue delay.  The investigating officer should ensure that all parties concerned are aware of what is happening and in the event of any delay, kept informed of the reason for the delay.

It is important for employers to handle disciplinary matters professionally, objectively and fairly. Where disciplinary proceedings lead to dismissal, the dismissed employee may be able to bring a claim for unfair dismissal to an employment tribunal. In these circumstances, if it is to succeed in defending the claim, the employer must be able to show not only that the misconduct in question was sufficient to justify the penalty of dismissal, but also that a fair procedure was followed. A fair investigation provides the backbone of a fair misconduct dismissal.

Help with investigations

Deminos are able to carry out investigations throughout the UK.  Call us now on 020 8783 2429 to discuss your requirements.

From 6 April 2009 the statutory dispute resolution procedures (i.e. the procedures dealing with disciplinary hearings, dismissals and grievances) will be abolished. They will be replaced by a new power for employment tribunals to increase or reduce tribunal awards by up to 25 per cent for failure to follow the new ACAS Code of Practice on Discipline and Grievance (the Code).

The Code is designed to allow employer and employees a more flexible approach to disciplinary and grievance issues by setting out the principles of what both employer and employee should do to achieve a reasonable standard of behaviour. Unlike the 2004 Code, it does not require employers and employees to follow mandatory steps in the process.

Employment tribunals will take the Code into account when considering relevant cases. The tribunal will consider whether a failure to follow the Code was unreasonable, taking into account factors such as size, resources, etc. If a tribunal decides that a failure, by either the employer or the employee, to follow the code as unreasonable it will have the power to adjust any award up or down by up to 25%

Key points to Note:

• There will no longer be an obligation to follow mandatory dispute resolution procedure. This means that a dismissal will not be automatically unfair where there has been a failure to do so.
• The Code sets down minimum standards for dealing with disciplinary and grievance issues. Employers with greater resources will be expected to meet higher standards when conducting disciplinaries and grievances.
• The Code and guidance are not legally binding, so a failure to follow them will not have legal sanctions.
• If a tribunal considers that an employer or employee has unreasonably failed to follow the Code, it may adjust the compensation awarded by up to 25%.
• Employees will not have to bring a grievance before submitting a tribunal claim.
• Parties are urged to resolve disputes informally at the earliest possible opportunity. Where problems are not resolved using internal procedures, employers should consider using an independent third party to help (e.g. mediation or pre-claim conciliation).

Transition Period

The statutory procedures will be repealed from 6 April 2009 this means there will be a transition period during which they will work in parallel with the new Code regime.

The date of a ‘trigger’ event will be used to decide whether the new or old regime will apply:
If the trigger date is on or after the 6 April 2009, the new regime will apply.
If the trigger date is on or before the 5 April 2009, the old regime will apply.

Dismissals  and Disciplinary issues

The date of the trigger event will be the date when the employer has started action against the employee. This may be the date when the employee received a letter explaining disciplinary action is being considered or , in the absence of a letter, a meeting at which the matter was raised. If neither of these steps were taken then the trigger would be the date on which the disciplinary action, including dismissal, was taken.

Grievance  issues

In the case of a grievance issue, the trigger date will be the date of the action about which the employee complains( even if the action continues beyond this date).

If the action, about which the employee complains, begins on or before the 5 April 2009 and continues beyond that date, the pre 6 April 2009 regime will still apply, subject to final cut off dates as follows:

• The employee makes a claim to an employment tribunal in relation to that grievance on or before the 4 July 2009 (e.g. for discrimination cases) or in the case of an equal pay or redundancy claim, 4 October 2009.