The Sunday Times - Business Doctor - Changing break times

Peter Done: Managing Director and Founder

March 27 2017

CW Writes: I'm looking at changing our break times for our existing employees, they currently get 40 minutes at lunchtime and 20 minutes in the afternoon. I would like to change this to a full hour at lunch. What kind of process do I have to follow?

There are many reasons why employers start their employees on certain terms and then consider changing these at a later date when the business develops and needs change. Amending working patterns of employees can lead to an increase in productivity and reduce the time lost by consolidating the amount of down time employees have.

Set breaks contained in contracts of employment become contractual terms and conditions. Even if not explicitly contained, it is likely that these have become implied contractual terms due to the frequency and regularity of these breaks occurring. Contractual terms are akin to a promise between employer and employee so changing these terms is a serious matter. Employers have to follow a fair procedure and need to get agreement of the affected employees.

Mutual agreement is the easiest way to make changes to contractual terms. This will require clear communication between employer and employee that includes an explanation of the change and why this is needed. Transparency and openness is key here; a failure to disclose information could make getting agreement harder. Employers can consider offering an incentive to the employees to try and facilitate an agreement, for example, making a one off payment to sweeten the deal or considering a period of phased changes to reduce the detriment faced by employees.

Failing to receive agreement through an informal method will require a formal consultation to be carried out. Employers should formalise a business case outlining the need for the change and the proposed effect on the business if this doesn’t take place. A consultation process should be held, although the exact process to follow will depend on the number of employees affected. Large numbers will require a process involving the election of representatives and minimum consultation periods.

Ultimately, if agreement is not received, employers can choose to terminate employment, with the relevant notice period, whilst simultaneously offering new employment on the changed terms and conditions. This can be a risky move and it is imperative a fair procedure is followed. Ending employment opens employers up to claims of unfair dismissal where the employees have at least two years’ service. Such a claim can be defended with a robust business case but getting this wrong can lead to a compensatory award being made against the business at tribunal.

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