Modification of working conditions in the United Kingdom
| Autor | Roger M Walden |
| Páginas | 62-75 |
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In United Kingdom (hereafter the UK) labor law there are in reality few limitations or restrictions on employers seeking to modify the terms and conditions of employment of their employees. This is because these matters remain primarily determined by the common law personal contract of employment between an employer and each individual employee.
Therefore, subject to statutory minimum standards such as the National Minimum Wage and the working time and paid holiday provision contained in the Working Time Regulations 1998, changes in the terms of employment (including, among other things, job functions, workplace/location, pay, hours and shift patterns) are a matter (in theory) for agreement between the two parties alone. Such agreement may arise as a result of express or implied terms in the original contract that permit the employer to make changes without further reference back to the employee(s) in question or as a result of a subsequent lawful and valid variation of the contract. The latter in principle requires the consent of each individual employee, which can include "implied" or "assumed" consent if the employer imposes changes unilaterally and an employee continues to work (depending on the nature of the change) without any or sufficient and continuous protest. In addition, employers can always lawfully terminate a contract of employment with proper notice and offer an employee a new one on changed terms.1
Consent may alternatively be obtained via collective bargaining agreements between an employer (or employers’ association) and a trade union (or unions), with the substantive terms or outcomes being incorporated into individual contracts (see further section 4 below). This mechanism is, however, much less prevalent than it once was due to the steady decline in union membership over a number of years. This means that only 29.5% of all employees now have their terms and conditions determined to some extent
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by collective agreement, with this figure being as low as 16.6% in the private sector (the
comparable public sector figure being a rather more healthy 63.8%).2
What it is also critical to understand is that there is no requirement in the UK to seek the prior authority, permission or consent of any external public regulatory authority or institutional body when changes are either contemplated or made by employers. If an employee believes that the employer did not have the contractual right to make a change or, for example, that dismissal for refusing to accept changes was "unfair" under statutory provisions on unfair dismissal the onus is on him or her to challenge this in, respectively, the civil courts or specialist Employment Tribunals.
We illustrate the relevant and often rather complex legal principles in answering the following questions.
Inherent "duty of adaptability"?
An employer will not generally act in breach of the contract of employment merely by changing working methods or introducing new procedures, as long as the employee’s job functions remain essentially the same - for example:
In Cresswell v Board of Inland Revenue [1984] IRLR 190 - the Inland Revenue did not breach civil servants’ contracts of employment when it asked them to carry out their duties by means of a new computer system instead of the previous manual methods. Although this inevitably meant some alteration to the jobs concerned, these alterations were not outside the original job duties of the grades concerned (clerical assistants and tax officers). The High Court said: "there can really be no doubt as to the fact that an employee is expected to adapt himself to new methods and techniques introduced in the course of employment . . . Of course, in a proper case the employer must provide any necessary training or retraining." The Court also commented that, while "a loss of job satisfaction is always regrettable", this would not by itself provide a cause of action.
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Note that this duty does not permit unilateral changes in the specific terms and conditions under which the same work is done (e.g. pay, working hours or geographical location).
Express flexibility clauses
There may, however, be express terms (either written or oral) within the contract of employment that permit an employer to require functional flexibility - for example:
In White v Reflecting Roadstuds Ltd [1990] IRLR 331, the employee’s contract contained an express term stating that "The company reserves the right, when determined by requirements of operational efficiency, to transfer employees to alternative work and it is a condition of employment that they are willing to do so when requested." This permitted the employer to transfer him to a different department and function even though this also entailed a loss of pay. The Employment Appeal Tribunal (hereafter the EAT) refused to imply a further contractual term that the employer’s power would only be exercised in a reasonable manner and/or that there should be no unilateral loss of pay. Provided the express power had been exercised on "reasonable and sufficient grounds" -here the employee’s poor attendance record which was having an adverse impact on other members of the team (including their earnings) in which he worked -there was no breach of contract. Unless a decision to exercise an express flexibility power was entirely "capricious" or "perverse", in matters of reorganization "it [was] for management to reach the decisions provided that they [did] so responsibly".
Express mobility clauses
If there is an express mobility clause or term in the contract of employment the employer is perfectly entitled to require an employee to move their geographical location or place of work in accordance with it - for example:
In Home office v Evans and another [2008] IRLR 59, two employee Immigration Officers’ contracts were found to contain an express clause to the effect: "If your status is as a mobile member of staff you are liable to be transferred to any Civil Service post, whether in the UK or abroad." According to the Court of Appeal,
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