As an employer, you need to ensure that you have a full understanding of your obligations and responsibilities, so in this article, we’re going to take a look at the rules surrounding changes to employment T&Cs.

Generally, it’s not legally possible for one party to make changes to a term of employment unilaterally e.g. without consent from the other party. In order to legitimately add, remove or make any changes to these terms, agreement must be reached by both the employer and employee.

It’s important to note that terms and conditions of employment are not only those that are set out in the contract of employment – it’s also possible that terms may become part of an employee’s terms and conditions through custom and practice. In order to establish a custom and practice, it must be “so notorious, well known and acquiesced in that in the absence of agreement in writing it is to be taken as one of the terms of the contract between the parties”, as per O’Reilly -v- Irish Press (1937) 71 ILTR 194.

Consultation

If an employer is looking to push through a change they need to engage in a consultation process with the affected employees, with the main objective being to secure consent.

Here are some things to consider during the consultation process:

  • It should be open and transparent
  • The rationale for the change should be clearly explained
  • The employer should provide as much information as possible to the employees, including:
    • Sales
    • Turnover
    • Profit etc

Furthermore, employers should consider alternative benefits or incentives to secure the desired change so, for example, consultation on pay cuts might be accompanied by alternative incentives (e.g. a lump sum payment, free shares etc).

If an employer doesn’t secure an agreement with employees but makes the change to the terms and conditions of employment regardless, this can present a number of risks, for example:

  • A claim of constructive dismissal under the Unfair Dismissal Acts 1977-2007
  • A claim for damages for breach of contract
  • A claim in respect of an unlawful deduction under the Payment of Wages Act 1991
  • A trade dispute under the Industrial Relations Acts 1964 -2004

So if you ever find yourself in this situation, please refer back to these points to make sure you’re protecting both your own position and the legal rights of your employees.

If you have any questions regarding the issues in this article, please don’t hesitate to contact our 24 Hour Advice Service on 01 855 50 50.