Ask Us – Can I change an employee’s working hours?

Business is rarely static and naturally needs for a workforce will evolve. From time to time an employer will have a business driver to change the working hours of employees.

A contract of employment exists between employer and employee. This may be a written contract or a ‘statement’ of particulars of employment. Even if nothing exists in writing, whatever the working arrangements have been in practice form the terms and conditions of employment. To be able to change the working arrangements employers must negotiate a change. Any attempt to ‘unilaterally’ change the terms (ie without employee agreement) would be a breach of contract and the employee could potentially claim damages (and unfair dismissal).

To minimise this risk, consider the following steps:

1. Create your business case
Set the background. Explain what the business driver is for the change. It may be following a new strategy or responding to a change in customer demand.

2. Discuss it with the affected employees
This is a fundamental principle of good employment practice – involve employees in decisions that affect them. It’s not a done deal at this stage so don’t impose the change. Use the business case to explain the rationale for the anticipated change and create dialogue to understand the impact the changes may have on the employee.

3. Seek agreement for the change.
If it is not agreeable to the employee, keep talking to then to allay any concerns or negotiate arrangements that work for both employee and employer. You may have flexibility clauses in your current contract to allow for certain changes to be made, but these must be reasonable, clearly communicated and unambiguous. That said, in a recent case the courts have advised they will interpret flexibility clauses ‘restrictively against employers’.

4. Give notice
To change an employee’s contractual terms you must give notice as required by the current contract. Remember that statutory notice may override contractual notice eg if you have 4 weeks’ notice in the contract but the employee has 7 years continuous service they are due 7 weeks’ notice. Employees may agree to waive the notice if the new arrangements suit them.

5. Implement the changes
If the changes are agreed, confirm them in writing and ask the employee to countersign either a variation of contract letter or a whole new contract. If you cannot seek agreement you and impose the changes, they may be accepted by custom and practice but you do risk claims of constructive dismissal. Constructive dismissal is hard to prove but if the changes are fundamental, an employee may feel and be able to demonstrate it is justified so we would advise seeking out specific advice for your situation so you can understand and manage your risk here.

6. Termination and re-offer
Ultimately you may feel that the change required is necessary and is a justifiable change that needs to happen. Terminating an employee’s current contract (with notice) and offering alternative terms is still a dismissal and as such you are at risk of an unfair dismissal claim. You will be relying on your business case to justify the dismissal. Always seek professional advice in advance if you want to pursue this route.

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