It is unlikely an employer can automatically vary employee’s terms and conditions of employment particularly if this puts the employee at a material disadvantage. So how do employers manage such circumstances when faced with difficult trading conditions?
The safest approach would be to obtain express agreement in writing from employees which would involve a period of consultation but it is unlikely employees will agree especially if the variation involves a reduction in remuneration or benefits.
Employers may consider terminating employment and offering re-engagement if some or all employees do not voluntarily accept the changes. Employers will be required to give notice of termination in accordance with the contract of employment to prevent wrongful dismissal claims. Provided the employer has a strong business rationale and follows the necessary procedures you are likely to defend any unfair dismissal claim under Some Other Substantial Reason (SOSR)
Employers may decide to take a firmer approach and change terms and conditions without prior consent. If employees raise no formal objections employers may rely on silent agreement to the changes albeit other risk factors are associated with this approach for example a claim for unauthorised deduction from wages or a claim of constructive dismissal
. Employers may refer to their contact of employment which may give authorisation to vary terms and conditions however the contract should be drafted in way that the right to make such changes is clear and unambiguous. If you require a handbook that is construed objectively the documentation team in NI can be of assistance.
If you are faced with a situation similar to the issues discussed in this article, your most important consideration should be to call our 24 Hour Advice Service on 0844 892 2786 to guide you through the correct approach.