Questions and answers

The employment law team at Charles Russell answer questions on workplace
issues

Changing terms and conditions

Q:  To what extent can an
employer impose changes to contracts of employment?

A:  As a matter of law, no
changes to an employee’s contract of employment may be made without the
employee’s consent. However, this consent may be express or implied. As a
consequence of this, and as a matter of practice, if there are minor changes to
a contract which do not adversely affect employees, these may be notified to
employees and in the absence of any objections, consent to the changes will be
implied.

However, in the case of more significant or wholesale changes, then express
consent must be obtained. If an employer simply attempts to impose such
changes, then employees may be entitled to resign and allege that they have
been constructively dismissed. The only other option, is for the employer to
terminate the existing contract of employment on notice and offer to re-employ
on the new terms, to take effect immediately following the end of the notice
period. This is a risky step and as it involves a dismissal, could give rise to
unfair dismissal claims. Therefore, a fair procedure prior to dismissing any
employees is vital.

Furthermore, under the recent case of GMB v Man Truck & Bus UK Limited,
if an employer is proposing to dismiss 20 or more employees in this way, then
the employer has to undergo a collective consultation process, as in the case
of standard redundancies. It is important to note in this regard, that the
obligation to consult arises (at the latest) at the point where the employer
has a proposal (i.e. prior to a final decision being made) to dismiss 20 or
more employees. If consultation is left until the employer is giving notice to
terminate or has reached a final decision to give notice, then it would be too
late. A failure to collectively consult in this way, would potentially give
rise to claims for protective awards and will also affect the fairness of the
dismissals.

Finally, some contracts of employment expressly reserve the power for the
employer to vary the terms of employment. However, these clauses are of limited
use and an employer is unlikely to be able to vary contractual provisions which
affect the rights of the employee by relying on them.

Michael Bradshaw

Emergency leave

Q:  On 18 December, an
employee called in saying that she was unable to come into work as her
childminder was ill. She has indicated that she may not be able to return until
after the Christmas holiday and has taken all her holiday entitlement for the
current year. I have been told that she had too much to drink at the christmas
party on 17 December and suspect that she may be using this as an excuse. What
can I do?

A:  Employees now have the
right to take a reasonable amount of time off work to deal with certain
unexpected or sudden emergencies involving a dependent. A dependent is
identified as a husband, wife or partner, child or parent of the employee. A
wider definition may apply in certain circumstances to include someone who
reasonably relies upon the employee for assistance, for example, where the
employee is the primary carer and is the only person who can help in an
emergency.

The legislation does not specify the amount of time off which an employee is
entitled to take off to deal with such emergencies, although for most cases,
one or two days should be sufficient. The right to time off does not mean an
employee may take several weeks off to care for a child, but will be entitled
to reasonable time off to enable them to deal with the situation and make
alternative care arrangements. It is not necessary for the employee to give
notice in writing and by telephoning in the employee has complied with her
notification requirements. The employer cannot insist that the employee
provides evidence, to support this.

The right to time off does not include entitlement to pay which is entirely
up to the employer’s discretion, unless provided for within the terms and
conditions of employment.

Where an employer suspects an employee may be taking advantage of this
provision, by simply informing the employee that whilst the employer is sympathetic
to their situation, this period of absence will be unpaid will generally be a
sufficient deterrent to prevent employees from abusing this entitlement.

As in this case, where an employer believes an employee is abusing the right
to time off, this should be dealt with in accordance with the company’s normal
disciplinary procedures.

Melanie Jenkins

Employee surveillance

Q:  Christmas time can be a
time for merriment within the office. Last year, employees downloaded risqué
material from the Internet and forwarded it around the office, which caused
offence to other employees. We are concerned to prevent this happening this
Christmas.

A:  If you have a concern that
matters could get out of hand this Christmas, then the first thing to do is to
remind employees of your policies concerning access to the Internet and
e-mails. Make it clear that whilst there is a balancing act in employees having
good fun, they must remember that someone’s fun is someone else’s harassment.
Employees should be warned that if such conduct takes place, then disciplinary
action could follow, which could lead to dismissal.

You may also wish to make clear in a note to employees that someone within
your organisation (possibly the IT Department) will be monitoring employees’
e-mails. Under the Regulation of Investigatory Powers Act 2000, new regulations
have been introduced, known as the Lawful Business Practice Regulations 2000
which came into force on the 24 October 2000. Those regulations allow you as an
employer, without the employee’s consent, to investigate and detect the unauthorised
use of the business telecommunications system of an employer. This means that
it is perfectly lawful for you as an employer to check and intercept such
e-mails.

The regulations and, good practice dictate that employees should always be
made aware of the practices of monitoring that will be undertaken by you. This
is why it would be good practice to make clear in the note you send to
employees about what monitoring may take place. It may be the case that this is
already made clear in your existing e-mail or Internet policies, but there is no
harm, and indeed every advantage in reminding employees of their obligations
and that monitoring will take place.

David Green

Christmas bonus

Q:  Do employees on maternity
leave have the right to receive a Christmas bonus?

A:  Employees absent on
maternity leave over the Christmas period would be entitled to receive a
Christmas bonus in the same way that it is paid to all other employees, unless
the employer can show there is some precondition to payment of the bonus that
those on maternity leave do not satisfy. If a Christmas bonus is paid to all
employees irrespective of how much of the year they have worked, it should also
be paid to those on maternity leave. The only instance in which an employer
could justify not paying a Christmas bonus to an employee on maternity leave
would be if the bonus was intended to be a reward for work carried out over a
specific period, during the whole of which period the employee in question had
not worked. If the employee had worked part of the period in question, they
would have a right to receive a pro-rata amount of bonus. Some employers are
including provisions in their contracts to this effect so that if an employee
is absent from work for a period of a month or more, for whatever reason,
including sickness, maternity leave or on sabbatical then a bonus is only
payable for the time that they have been at work.

Nick Hurley

Holidays

Q:  Can an employer require
employees to work Christmas day and Boxing Day? (Ebenezer Scrooge)

A:  There is no statutory
entitlement for an employee to have bank and public holidays off. In England,
Wales and Northern Ireland Christmas day and good friday are common holidays
and although not specified by law as bank holidays, have become customary
holidays because of common observance.

Bank and customary holidays, are generally observed and it is common
practice for an employees’ terms and conditions of employment to include an
entitlement to a holiday on those days. Although an employee’s contract may not
specifically state that they are entitled to time off on bank and public
holidays, if over a period of time, it has been customary not to require
employees to work on these holidays this may be regarded as forming part of
their terms and conditions.

Helen Brooks

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