As staff return to the workplace and the furlough scheme draws to a close, employers are likely to face decisions on changing terms and conditions whether triggered by business needs or employee requests.
This can be a tricky area as while some variations may be authorised by express terms, significant changes will require consent and unilateral changes risk breach of contract, potentially even constructive dismissal claims.
Case law has established that employers have an implied duty to exercise variation clauses reasonably.
As a result, even where the contract may permit a change, it makes sense to consult with affected staff and seek their agreement.
For some changes it may be a matter of give and take. Context will also be important as with vulnerable staff there is a greater risk of damaging trust and confidence. On the other hand, employees are more likely to agree to changes where these avoid a redundancy situation.
In terms of staff requests, employees (but not workers) with six months’ service have a statutory right to apply once a year to their employer to change how, when and/or where they work.
Employers may only refuse such applications on certain specified grounds and there is a time limit for handling flexible working requests.
Following a flexible working policy reduces the risk of decisions being challenged, however, as the law protects employees from detriment or dismissal for requesting flexible working, we could see a rise in the number of these claims in the coming months.
Paul Clark
Partner and head of employment, Jacksons Law Firm
