I am the Managing Director at a production company. My employees work in two different shifts. I would like to vary the shifts so they each commence 1 hour earlier and finish 1 hour earlier as this works better with the maintenance team. There will not be any impact on their pay. The employment contracts say that the company can vary hours and other terms without requiring consent of the employees. Can I rely on this to implement the shift change?
In practice, employers are unlikely to be able to rely on general flexibility clauses such as the one referred to in your question, other than to make reasonable or minor administrative changes which are not detrimental to employees. In the case of Bateman and others v Asda Stores Ltd it was held that Asda could rely on a general statement in the staff handbook in regards to introducing new pay terms without the express consent of all affected employees. However, it is notable that Asda had undertaken a lot of consultation with its employees prior to the change and that the employees could not show that there was any financial detriment to them as a result of the new pay terms, and it appears that this was a significant factor in the finding that Asda acted reasonably.
In your situation, the clause you refer to is unlikely to assist in regard to changing the shift start and end times because this could be detrimental to some or all of the employees. Therefore, the most advisable method to effect the change is to seek the agreement of the employees concerned. In order to go about this, you will need to consult with affected employees over a reasonable period and obtain their agreement to the change (preferably in writing) before issuing updated contracts of employment.
There may be some opposition to the shift change and this may include reasons such as childcare arrangements being harder to manage. This could give rise to indirect sex discrimination claims (but you would have a defence to these if the changes are a proportionate means of achieving a legitimate aim). An employer should listen and respond to any queries or concerns raised by employees during the consultation period. You should be prepared to vary or compromise on the proposal if possible. However, there may be reasons why the change must be implemented and an employer should make such reasons known during any consultation. Offering an incentive for acceptance of the change may also assist you in obtaining agreement to the change, where appropriate.
Where employees refuse to expressly agree to a change, the next option is likely to be terminating the existing contract with notice and offering the employees continued employment on the new terms. This does carry a much higher risk in terms of claims for unfair dismissal and/or breach of contract. An employer in this situation may have some routes available to it to defend such claims, by establishing a fair reason for the dismissal and showing that it acted reasonably in dismissing the employee for their refusal to agree to the change. This would require the company to show (amongst other things) a sound business reason for the change.
It is advisable to get specific legal advice if you are considering changing terms of employment. If you would like our assistance please contact us on 01243 836840 or [email protected].