Change to Contract

[myboysarethebest]

Hoping you can help??

We have an employee who started with us June 2009. She was employed part - time (20 hours per week).
We are now in a situation where we cannot continue with the part-time hours. In the past six months, the revenue she brings in only just covers her salary. (especially once we take into account employers NI and holiday pay)
We have other employees who work with us on a percentage basis of the clients they see.
So what we want to do is move this employee off salary and onto the percentage per client basis.
So that way when she is not seeing clients we are not paying her to sit around and do nothing.

I just want to ask is this ok for us to do? She has been employed less than 12 months, so if we give her 6-7 weeks notice about the changes are we ok by law?
I am assuming so because if we really wanted to we could give her notice of termination of the position with a weeks notice, so surely a change in contract is ok?
Obviously she will have to think about if she wants to continue with the new conditions.

Any help or advice appreciated.

I would advise you to talk to acas. However in my experience you cannot vary an employees contract unless it is discusses with her first and she agrees. She was initially employed as part time. Did you at any time advise her that this may change? If not you are on flaky ground. You cannot just dismiss her without going through a a full procedural disciplinary and if she has done nothing wrong you cannot go down this route. You don't want to get taken to a tribunal for unfair dismissal. I strongly advise talking to acas.

Has she been employed with you for less than a year or part-time for less than a year? It makes a difference.

Yes she has according to the OP.

Think that the notice you are giving is more than adequate.

Employee still doesn't have to agree to the new terms and she cannot be unfairly dismissed! Dodgy ground if you ask me!

June 2009 start date suggests over one year therefore tribunal situation a very real option!

Ah I missed that bit, read the bit further down about being there less than a year.

Yes very risky to do anything without seeking proper HR advice!

Maybe 'myboysarethebest' feels that the employee hasn't worked 12 months as employee part time! However part time employees must still be treated the same as full timers.

Yes I agree - HR or acas are definite first calls :)

I can't give you free advice as you would be a target client, but I agree, it sounds as though the employee certainly has more than a year's service, so apart from other concerns with changing contract, you don't have protection against an unfair dismissal claim.

You need to be very careful. It's usually possible to do what you want, but you really need to take proper advice before attempting this otherwise you are likely to end up in a sticky situation.

What Flowery said. I have just issued new contracts to all our staff following a review of pay, benefits, job roles and working hours/patterns. There are procedures you must follow by law and there is much scope for getting it wrong and ending up in a Tribunal so please take decent HR or legal advice.

SORRY - go that completely wrong.
It should be June 2010.

So the employee has been less than a year. Hence why I thought you only would need a weeks notice? (contract is a month, so we are giving that)

and also knowing that doing something before the 'year anniversary' would make things easier for us, ie if we really are in a financial position not to be able to pay her this time next year - then get into redundancy etc etc.

I am fully aware that part-time has same rights as full-time.

Make sure employee can't claim for anything else where the year rule doesn't apply (ie racial discrimination, sex discrimination or any other form of discrimination). Still dodgy ground but you know your employee better than me. Good luck with that.

Sorry - late and I'm tired, so apologies.

Not that we want to dismiss this employee.

BUT
the rules in regards to dismissing an employee, from my understanding if they have been with us for less than a year, we only have to give one weeks notice.
Is that not correct? do I still need to have reason?
The fact revenue barely covers her salary is not good enough?

Yes you have to give a reason and go through full disciplinary as within your own procedures and in the very least follow acas code of practice. I think you may find the 1 weeks notice only applies to first three months but either way you must stick to what is in the employees contract (ie one month). Unfortunately it is VERY difficult to get rid of someone these days ans by the sounds of it your reason won't stand up in a tribunal. If her job is not longer open then the only route I feel is redundancy which I know is expensive. I really would suggest you have a chat with acas in the morning. Warning - they are always in employees side so don't go in with much hope. Just don't start something without properly checking it out - I got caught out this way a few years back hence my employment law knowledge now. Good luck

thanks milly44
will do, think I will also have a chat to the employee about my concerns and possible options for next year - open the discussion, it might not be a big deal to her or might be. Better to know with open eyes.

Speak to acas first won't you. You don't want to get yourself into the situation where you have spoken to employee and then later on down the line she gets you for constructive dismissal!! Sorry. I'm a very cynical business owner who doesn't trust anyone!! Sad but true. Good luck with acas

There is no entitlement to redundancy pay according to her length of service. You just have to give her notice. You may prefer to pay her in lieu of notice if she works with clients.

I would tred very carefully if she is the only employee to be approached because there could be a claim for indirect sex discrimination.

I have to ask, why is she on a different contract to other staff? And why is her revenue only just covering her salary? Did you not check you had capacity and enough potential business when you employed her? And should her targets (and everyone's) be based on fte so you can ensure costs are covered and you make a profit?

I wouldn't bother with acas myself but I would speak to an HR advisor in house or if there isn't an in house HR function to a consultancy. Or an employment lawyer but that is pricey... but so is tribunal.