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.

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.

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.

Good employers always want the right balance between reducing
unnecessary sickness absences and supporting genuine employees
needs. Effective management of sickness absence is even more
important in light of the recent European Court of Justice (ECJ)
ruling in Stringer and others v HM Revenue and Customs. Now those
on sickness absence are now entitled to accrue annual leave and
carry forward any untaken leave into the next holiday year. In
addition, if they haven’t had the chance to take accrued holiday by
the time their employment terminates, they are entitled upon
termination to payment in lieu of their unused holiday.

Good sickness management sounds great, but where do you start?

An effective sickness policy should be your priority, which sets
out clearly the process for reporting, monitoring and managing
absences.

An obligation to personally report absences by telephone is a must
- allowing the use of texts and e-mail encourages a ‘detached’
attitude to the reality of taking a ‘sickie’.

All employers owe their employees a duty of care and monitoring
sickness absence can be one step that employers can take to fulfill
this obligation, ensuring that they have employees that are fit and
able to carry out their work. An effective monitoring process can
also help to manage an absence, before it becomes a major problem.

Return to work interviews, form an important role in proactively
managing absences. It’s important that they are carried out as soon
as possible upon return to work and are used in conjunction with
fully completed self-certification forms, for absences that last
less than 7 days. Interviews provide the opportunity to confirm
that employees are fit to return to work and to understand the
underlying reason why an employee might be prone to certain
conditions. Evidence also shows that back to work interviews reduce
short term absences and can give companies the opportunity to
identify underlying organisational issues, such as work related
stress and bullying.

Obtaining up-to-date medical reports from the employee’s GP is a
vital first step in assessing the nature and seriousness of any
short term and long-term illness. Crucially this can help detect if
the employee could be classed as disabled in accordance with the
Disability and Discrimination Act 1995. If found to be the case,
the employer has an obligation to consider if reasonable
adjustments can be made to help the employee return to work.

Medical evidence and consultation with the employee at this stage
is also crucial as it can indicate if the employee is capable of
returning to their role and may help support an employers decision
to dismiss on grounds of capability, but this option should always
be the last resort and other options such as alternative employment
should always be considered first.

Deminos can look over, check and update all of your policies, and
provide advice on all aspects of employment law.

All of our advice is Guaranteed – backed by our £1 million of
Employment Tribunal Indemnity. This cover provides full legal
representation as well as any Tribunal payouts awarded.

For further information, call us now on 020 7873 2429.

But there is still plenty that you need to be aware of. Watch out for these upcoming changes:

1 February 2009

• Limits that apply to certain employment tribunal awards and to other amounts payable under employment legislation will increase. For example, the maximum amount of a ‘week’s pay’ (used for calculating an unfair dismissal basic award and statutory redundancy payments) will increase from £330 to £350.

1 April 2009

• The statutory minimum holiday entitlement increases from 4.8 weeks to 5.6 weeks.

5 April 2009

• The standard weekly rate of statutory maternity pay (SMP) and the weekly rates of statutory paternity pay (SPP) and statutory adoption pay (SAP) will increase from £117.18 to £123.06.

6 April 2009

• The weekly rate of statutory sick pay (SSP) will increase from £75.40 to £79.15.
• The lower earnings limit for qualifying for SMP, SPP, SAP and SSP will increase from £90.00 to £95.00 per week.
• The statutory disciplinary and dismissal procedures (DDP) and statutory grievance procedures (GP) and the current ACAS Code of Practice on Disciplinary and Grievance Procedures are being abolished by the Employment Act 2008, to be replaced with a ‘lighter touch’ non-statutory regime based on a brand new ACAS Code of Practice.
• The various other provisions of the Employment Act 2008 will come into force, including changes to: enforcement of the national minimum wage (NMW), trade union membership law and ACAS conciliation.
• The right to request flexible working will be extended to parents of children up to the age of 16.
• The right to time off work for public duties is being extended to employees in a wider range of civic roles.

1 August 2009

• Trainee doctors will be subject to a weekly working limit of 48 hours.

1 October 2009

• Subject to prevailing economic conditions and the recommendations of the Low Pay Commission, the national minimum wage (NMW) may rise from 1 October 2009. In addition, the government is proposing to amend the legislation to prevent employers from using tips and service charges to top up employees’ pay to meet the NMW, but the date of implementation of this is not yet known.

12 October 2009

• The Safeguarding Vulnerable Groups Act 2006 will introduce a centralised vetting system for employees and will create a single list of people banned from working with children and vulnerable adults. Penalties will be imposed on employers who fail to make the necessary checks.

Deminos make sure that all your employment contracts, policies and procedures are compliant with these and other new developments in employment legislation by providing your business with a virtual HR Department.

All of our advice is Guaranteed – backed by our £1 million of Employment Tribunal Indemnity. This cover provides full legal representation as well as any Tribunal awards.

For further information contact us now at the Gateshead office on 0191 460 1111 or our London office on 020 7873 2429.

The increases in compensation and other related costs,
predominately linked to dismissals, whether employees have been
rightly or wrongly dismissed, will place further importance on
making sure that all employers are compliant with employment
legislation.

The limits are changed in accordance with Section 34 of the
Employment Relations Act 1999. This section states, if the retail
price index (RPI) for September of a year is higher (or lower) than
the RPI of the previous September, the Secretary of State is
required to change the limits, by Order, by the amounts of the
increase (or decrease). Therefore the increases made reflect the
increase in the RPI from September 2007 to September 2008.

Here are some of the key increases:

Statutory Daily Guarantee Payment – Increased by £1.10 to £21.50
A “Weeks” pay – Increased by £20.00 to £350.00
Compensatory Award (Unfair Dismissal) – Increased by £3,200 to £66,200

To find out more about the increase go to: www.opsi.gov.uk

Deminos can help you avoid paying these costs by providing your
business with a virtual HR Department that will give you
professional and realistic ways of managing your workforce, with
the added benefit of Employment Tribunal Insurance should a claim
be made against your company.

For further information contact either the Gateshead office on 0191
460 1111 or our London office on 020 7873 2429 and we can provide
you with a quote or arrange to come and discuss your needs.

Ensure that staff are aware that the party is a work related
activity. Policies such as anti-discrimination, bullying &
harassment will still apply at the party and on the way home
afterwards, and it may be worth bringing them to the attention of
your employees before the party.

Actively discourage employees from driving after the party if they
intend to drink alcohol. Consider this when planning the venue of
the party – is it easily accessible by public transport/ taxis.

If you are supplying free drinks for your employees set a limit as
to the number of drinks allowed per individual and communicate this
before the party. Also ensure that soft drinks are as freely
available as alcoholic drinks.

If employees are attending parties organised by customer/ clients
then ensure they are aware of what standards of behaviour are
expected of them. As they are acting as a representative of the
Company they should treat it as a work related activity.

Prior to the party, communicate with all staff that they could be
subject to disciplinary action if they fail to turn up to work due
to over-indulgence, or if they turn up for work intoxicated.

Remember to invite members of staff who are away from the workplace
due to absences such as maternity/ paternity leave or sick leave.

If grievances are raised or disciplinary situations arise as a
result of the Christmas party, it is important that they are taken
seriously and that proper procedures are followed.

On the whole, remember that this is a great opportunity for your
employees to mix and socialise in a relaxed informal setting as
well as an excellent opportunity for you as an employer to show
your appreciation and thanks for work done over the past year.

To find out more on how Deminos can make sure your contracts,
policies, procedures and practices meet the statutory requirements
ring us today – tomorrow may be too late! Call 0191 460 1111
or e-mail at info@deminos.co.uk

A redundancy program is only one possible answer to a business
problem and it is very seldom a complete solution. The organisation
needs to ensure that its whole business strategy is reviewed and
that all reasons for lost competitiveness are addressed.

Failing to address workforce issues and driving the company into
bankruptcy thus losing all jobs does not make sense. There are
strategies, falling short of redundancies, which although having an
adverse impact, are better than the alternative and can help your
organisation prepare for the future and become a strong competitor
in your market.

These strategies could include:

Managing Poor Performers – businesses are sometimes very fearful of
managing poor performers from – especially if they have a number of
years service. It will be a fact that these poor performers are
not providing the same productivity output as other members of the
workforce and are therefore ultimately costing your business.
While it may take a number of months to either get the employee
performing to the level expected or manage them out of the
business, it will be time well spent.

Retraining or Redeployment – this should always be explored in
depth. This may be a great opportunity to create a multi-skilled
workforce which may give the organisation an opportunity to take on
additional work in a certain area, where there has been a downturn
in work in another area. It is more cost effective than
compensation, recruitment and induction costs.

If you would like more information on these and other alternatives
that may be available to you then contact us today on 0191 460 1111

Often there is pressure to make redundancies, but companies do not
want to lose the valuable skills and experience of their staff.

This has recently been seen in the news with Honda halting UK car
production at its Swindon plant for two months during Feb and Mar
2009. A 17% drop in production is the net result, but most
importantly all staff are retained on their basic package ready for
work to resume.

Lay-offs such as those at Honda or ‘short time working’ (where the
working week is shortened) can provide a temporary alternative to
workforce reduction. These can only be introduced if there is a
contractual right to do so, that is either stated in the contract
of employment or through a collective agreement.

Check your employment contract.

If you have no contractual right to do so, you may go into a period
of consultation with your staff to get their agreement to the
changes, which would involve varying contracts and you would have
to confirm the changes in writing with each individual.

Even if you have right to bring into effect short-time working or
lay offs, you need to make sure that the situation is handled
carefully and take into account the effect that this may have on
your workforce, this is especially the case if it is not a regular
occurrence.

You need to be watchful over what period of time and the number of
occasions that you impose short time working or lay off on an
individual as they may then have the legal right to claim
redundancy. This is a very complex area of employment law with a
number of legal provisions that need to be followed.

Call us now.

Deminos can help . . . . ring us today on 0191 460 1111 – we can be
your virtual HR Department at the fraction of the price of
employing an additional member of staff, with the added security of
Employment Tribunal Insurance.

With UK unemployment hitting 1.825 million (5.8%) this means the
press is filled with talk of redundancy. Just yesterday,
household names including Virgin Media and Yell announced a total
of 5,000 job cuts.

In most businesses the wage bill is the biggest single cost, hence
redundancy is often seen as the only alternative. But this is not
necessarily the case – next week we will look to alternatives such
as varying contracts, reducing working hours, cutting bonuses and
overtime to avoid layoffs.

Getting the process of redundancy right

However, if redundancies have to be made then most companies will
need to start at least 30 days of employee consultation.

This should be carried out in line with the new Consultation and
Information of Employees Regulations 2004 and must include written
details of:
– reason for redundancies
– areas/ job functions where redundancies need to be made
– the selection criteria to be used
– calculation of redundancy payments

This sets out a summary of the minimum requirements to ensure you
are within employment legislation, but it is also important that
you have a fair and business focussed process. Most employers will
naturally want to do much more for their staff with help for
looking at their options, help with CVs, flexibility for attendance
at job interviews etc.

In the final article in the series we will look at how proper
planning can ensure your business is fit for the future.

If you need any help or guidance on this or any other HR matter,
please call our HR team now on 0191 460 1111.