Rights on contract change please?

[mykiddies]

All employees on old contracts have been asked to sign a new contract so all employees are on current standard contract as part of cost saving exercise after redundancies were made. It has been changed to 2 weeks full pay for absence in any twelve month rolling period at the firm's discretion. Change to take effect from 1 April. Notified that changes were to be made 3 Feb. There are around 10 people on old contracts. A few seem to not want to let others know if they are signing or not. I am just concerned that some might refuse to sign and some might sign. Could they be doing this to see if anyone will sign it knowing that legally it is not right so that if anyone said they weren't happy they could say `that's ok then'. What could happen if you said you wouldn't sign? Do they have rights to do this? Any advice would be appreciated.

mykiddies I think if you are able to contact others just to say 'this is what we are doing, completely up to you whether you join or not' that would be good. That way they will know that should they want to object, they will not be alone and will have support, but you are not putting pressure on them to do so if they feel they would rather not get involved.

fishnet - what would you do then?

fishnet - so what you are saying is that any employer can impose any contract terms it likes at any time even if the employee does not agree and an employee wil get no compensation for the loss of his/her employemnt rights versus the old contract from the employer and will not get any compensation from the Tribunals if he/she refuses to sign.

What is the point of having any employment contract then? It is not worth the paper it is written on.

Not disputing what you say but it seems you are saying that an employer can do what ever they like. Taken to its logcal conclusion, could an employer just keep changing contract terms every day of the week and forcing it through?

I woud simply sign to be honest unless you think you're going to be off sick for a long period in the very near future.

ABetaDad yes basically an employer can change the contract. not because the contract isn't worth anything but because the remedy for the employee is not worth losing their job over.

I have just done a very large D&R (dismissal and reengagement) exercise where terms have been changed. The employees have in the main part stayed and continued to work. A hanful have refused to accept the new role but in my view they have been badly advised. They won't get a notice payment because they were given notice of the termination of the old contract, they won't get compensation because they could have accepted a new contract for a job starting the very next day on only slightly different terms. This is known as failing to mitigate your loss. In these circumstances the tribunal award is not made to penalise the employer it is made to ensure the employee is not out of pocket. You would not be out of pocket in this situation since its just a change in sickness terms. The only award you might get is somehting called a basic award which is vey small (equivalent to a statutory redundancy payment).

It might seem unfair but most companies don't do this sort of thing just to be mean they do it becaue they have to be able to survive as businesses and if they don't then everyone loses out because nobody has a job.

Fishnet -- I was under the impression that an employer could not impose unilateral change of terms and conditions?

ABetaDad It's not about an employer being able to 'impose any contract terms it likes', it's about the fact that in order to operate as a business it must be possible for an employer to change contractual terms if it genuinely needs to do so.

Obviously, if an employer was trying to impose some outrageous and completely unnecessary change for no business reason whatever, and dismissed employees with a view to re-engaging on the new terms, an unfair dismissal claim would be more likely to succeed as a tribunal would be more likely to take the view that the employer was behaving unreasonably in dismissing the employee for refusing to accept that particular change.

But if the change has a decent business reason behind it, and the employer has consulted properly, and given employees every opportunity to raise concerns they might have, then yes they can force it through, and in most cases, as fishnet says, it won't be worth bringing an unfair dismissal claim, or would be difficult to do so.

You can't change an employees terms and conditions without their consent. If you impose unilaterally they could say they have been constructively dismissed and leave (although a change in sickness terms would probably not be considered to be a serious enouh breach). If you dismiss (on notice) and offer reengagement then that is not a unilateral change it is dismissal followed by an offer of reengagement which, if an employee does not accept, can be used to argue that the employee has failed to mitigate his/her loss in the event that a tribunal finds that there was not sufficient reason for the dismissal.

If this was a proposed reduction in salary, whihc has been going on everywhere, then the employee would have loss (less money going into their bank account) and so it might be worth refusing the offer of reengagement. THEN however there is the issue that if you get another job that salary is offset against you loss. Its all quite complicated but ultimately, for most people, unless they are facing a big drop in salary, the best thing to do wil be to stick it out.

I understand the frustration (DH has just had a ten per cent pay cut imposed and my dad has had a f15 per cent cut plus removal of pension contributions) but is it worth losing your job over? In my opinion no, and nothing you say is likely to make a difference to the plans. You're likely to just be branded a trouble maker. Harsh maybe, but true.

Ah, I see. It's the remedy aspect that makes it unviable not to accept on the basis of what a tribunal would potentially award...

I agree with what Fisnet and Flowery have been saying. The issue is that, in the scheme of things, this is a fairly minor change. Ok, so the employees will not like their sick pay going down, but fundamentally it is not a really major change.

As Fishnet says, if the change had been major, the situation would have been different. If it had been really bad (say, a 50% pay cut) then a Tribunal might even say that no consultation process and business reason was good enough and award compensation without offsetting the earnings against the loss. A situation like that is really more likely to be a redundancy situation - and a proper, fair, redundancy process should be followed instead.

If the rules were otherwise then an employee who signed a contract could dig their heels in and refuse to accept any changes for the next 20 years. Tribunals know that this is unrealistic. They are looking for your reasons for the change to be good and for your consultation to be good.

flowerybeanbag - what you said is exactly the point I am making here.

"Obviously, if an employer was trying to impose some outrageous and completely unnecessary change for no business reason whatever, and dismissed employees with a view to re-engaging on the new terms, an unfair dismissal claim would be more likely to succeed as a tribunal would be more likely to take the view that the employer was behaving unreasonably in dismissing the employee for refusing to accept that particular change."

This term is onerous in my view. That is just my view. Going from 3 months down to 2 weeks sick pay is draconian and actually does not help the business save money unless the employee happens to be sick. It is not going to save the future of the business by doing this and I think it would be very for the emplyer to show that it did.

Obviously we can all argue until the cows come home but it would be interesting to see what a Tribunal thought was a onerous contractual change and what was necessary fo rth efuture of the business. It is not cut and dried and I bet the employer in this case would settle out of court if mykiddies pushed her case.

With repect I don't think you are making the same point as me. You interpreted fishnet's post as saying that an employer can impose anything they like. I was saying that is not the case, there are hoops an employer must go through first, and the contract change needs to be for decent business reasons. For something to be a decent business reason it doesn't have to be something necessary to 'save the future of the business', it just needs to be a reasonable business decision, and the correct process needs to have been followed. Reducing generous sick pay in line with other employees is a business decision.

My own view is that it is definitely worth mykiddies doing as she is proposing; voicing objections and proposing a compromise purely because her employer may not be up for a fight about it. They may not consider it to be that crucial at the moment to bring the change in and/or and may be happy to come to a compromise in exchange for cooperation and a hassle-free transition.

But as fishnet has explained, there would be little or no point mykiddies or her colleagues actually going as far as bringing a tribunal case. Unfair dismissal compensation is based on financial loss only. This is not a major 'dealbreaker' change, there is no cut in salary and indeed the vast majority of employees will be completely unaffected as most people don't have any more than two weeks off sick in a year in any case. The financial loss involved will be miniscule, making a claim pretty pointless.

Should her employer decide they do want to push this through despite the hassle and want to dismiss and then reengage they will take the realistic view that it is highly unlikely any of the affected employees will actually prefer to engage a lawyer themselve and bring a claim for unfair dismissal than to stay in work on slightly less favourable sickness absence terms. As mykiddies would have the opportunity to stay in work on the same terms and conditions but with a bit less sick pay in the unlikely event of long-term sickness, I can't see a tribunal thinking it reasonable of her to refuse such an offer tbh.

If I were the employer I'd want to hear the concerns, which may include people with ongoing medical conditions who have reason to believe they might need the sick pay. I'd want to address those genuine concerns as an employer.

I would definitely consider phasing the change in over a period of a year or two, or making discretionary arrangements for pre-existing conditions for a short period of time, or similar, if a significant number of people were not happy.

So it's worth making a fuss definitely, although not worth bringing a legal claim over in my view.

mykiddies - at the end of the day, regardless of the legal rights and wrongs being discussed above, an outcome that works for you is what matters here.

It is almost always better getting a negotiated solution than going to a Tribunal. Fighting a case through a Tribunal is not something anyone should go into lightly, regardless of the strength of your case.

In your position, as I said earlier, it may just be better to look for another job. If you think that signing the new contract will buy you some time to do that and you are in good health then that may be the right solution for you. Personally I do not think it is a fair contractual change but that is only my opinion and others disagree. It is for you to decide whether what is being proposed is something you can live with. Better to be in work than out of work and morally/legally in the right but broke.

Sadly, I do not think it will make any difference to your chances of being made redundant in the next 6 months. If the firm wants/needs to make people redundant it will do it - no matter how reasonable you have been over the new contract now.