November 6, 2019
Employees were asked to give their consent by the end of 2 November 2019, with some fearing that they would lose their jobs if they didn’t agree to the new terms.
The new terms include increases to hourly pay, unpaid breaks, compulsory working on certain bank holidays, and changes to night shift payments. The changes will also give more power to Asda to be able to easily change an employee’s working hours and department location. The new terms could also force employees to attend work at shorter notice, which many argue will unfairly disrupt their family and care commitments.
These changes could amount to indirect sex discrimination under the Equality Act 2010 if they put female employees, who often require flexible working arrangements due to childcare responsibilities, at a substantial disadvantage compared to male employees. Asda would have a defence if implementing the new terms is “a proportionate means of achieving a legitimate aim”.
How can I change an employee’s terms and conditions of employment?
If there’s no contractual right to change an employee’s terms of employment, then you could either:
a) get an express agreement to the new terms from the employee;
b) impose the change without the employee’s express permission and argue that their conduct has implied their agreement to the new terms; or
c) terminate the employee’s existing contract and then offer them employment under the new terms.
Option A would help avoid any dispute with the employee. However, if an employee won’t sign an express agreement to the new terms, then Option C would avoid the risks which come with unilaterally imposing changes on employees. Reports suggest that if Asda can’t get express agreements to the new terms from its employees, then they may terminate the existing contracts and then offer employment under the new terms it wants to impose.
If Asda can argue that there is a good business reason for these changes, then they could dismiss any employees who won’t agree to the new terms on the grounds that they failed to agree to reasonable changes to their terms of employment. Asda employees may then consider bringing claims to the Employment Tribunal for unfair dismissal on the grounds that either there was no fair reason for their dismissal or that Asda failed to follow correct procedure when dismissing them.
Top tips for employers when considering changes to its terms of employment:
Check your contracts of employment to see whether you have the contractual right to amend their terms;
It’s best to be open with your employees about the changes you want to make by informing and consulting them first;
Ensure that you have a sound business reason for implementing the changes so you can justify your decision and defend any potential employment tribunal claims that may arise.
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