Staff contracts: Are they painful to touch?
Don’t get your fingers burned when managing changes to staff contracts, says Kate Nowicki, Area Director, Acas East Midlands
In recent months we have had a flurry of calls to the Acas Helpline from the primary care sector, in particular GP practices, about changes to contracts of employment. It can seem a scary business, and if you get it wrong those fears can be justified, but with a common sense approach and some sound advice behind you there’s nothing to fear.
Extended hours, merging practices, changing job roles, they are changes that you are all familiar with, and at an individual level they usual mean contractual change. Practice managers can follow some straightforward principles to handle alterations to contracts of employment effectively and get a fair outcome for all involved.
But what is in that contract in the first place? It may be worth having a check-up on any paperwork that is already there. In fact just finding the paperwork can be a challenge! It is not unusual, for example, for both employer and employee to have lost any copy of a contract, especially for longer serving staff. In fact, it’s not unusual for employers to believe that in the absence of any written evidence, they can do what they want because a contract doesn’t exist. That is not true, of course, and a contract exists as soon as an offer of employment is accepted.
So once you know what you’ve got, if you do have to make changes, where do you start? Can you ask the practice nurse to start a new shift pattern next week, and change her usual day off? Well, you can certainly try, but you may not get the outcome that you want!
Consultation is the key
The changes that you are seeking need to be agreed with the staff that they affect, and that holds true both ways; staff can ask employers for contractual change, and vice versa. Here, though, I am focussing on when the employer wants to make a change, and the starting point is consultation with the staff or their representative(s). When people understand the reasons for a change they are more likely to accept it, and even better, they might be able to contribute ideas to help the situation.
When you reach agreement should you put it in writing? Well, if it affects one of the statutory terms, such as pay, hours, or holiday, then yes you should, within one month of the change taking effect. But whatever the change, I would always recommend that you write it down, and get the other party to confirm their agreement in writing, perhaps in a short email or by signing off their acceptance on a copy of your letter.
Try a different perspective
What if you struggle to agree? You can look at incentives, or ‘buy outs’. They are not always going to be appropriate, but in cash or in kind they can sometimes work. Try getting a different perspective on things, and bouncing different ideas around. I know of a company where a disagreement about changes to allowances was resolved by the reintroduction of a free Christmas turkey for all staff!
But if you can’t agree, and the message is ‘stuff your turkeys’, what next?
Into the breach
If you go ahead and impose the change you will be in breach of contract. Your employees would then have a range of potential legal challenges against you. Depending on the circumstances these could include a claim for constructive dismissal if the breach is fundamental and significant, or a claim for damages for breach of contract at a civil court or, if pay is involved, possibly a claim at an employment tribunal for unlawful deduction from wages.
As well as a legal headache, a unilateral change of contract can cause lasting damage to the trust and confidence between the manager and their staff, which can linger for years.
But we can’t agree!
If you really can’t reach agreement with your employees then you can serve notice to terminate the existing contract and offer re-engagement on revised terms. This is the option of last resort, after all consultation has been completed, and it is a dismissal of the employee. If you do decide to do this you must follow a fair procedure and offer the right of appeal. Your employee may make a claim to an Employment Tribunal for unfair dismissal, and it would be for the tribunal to weigh up the facts and decide whether it was fair or unfair.
Finally, if turkeys are off the negotiating table, and you need help to move things forward, give us a call, and we’ll see how we can help.
*Acas Helpline: 0300 123 1100 (open Monday to Friday 8am-8pm and Saturday 9am-1pm). A free booklet: Varying a Contract of Employment is available from the Acas website.