Management Clinic: Agreeing working hours

You should first check your employees' contracts of employment to determine if there is a clause in there, typically known as a variation term, through which you have expressly reserved the right to amend particular terms of the contract. If such a term does exist, you can go ahead and make the change. Even with this term, you should still act reasonably and fairly when making the change.

If there is no such term, you will have to gain your employees' agreement to working different days.

The most effective way of obtaining consent is by express agreement. The easiest way to tackle this is, at the outset, to simply have a chat with your employees and ask them whether they would be willing to agree to the change. You need not always assume the worst because your employees may well surprise you and give consent. It may be that they were struggling with the current working days and would actually prefer the new arrangements. Strange as it might sound, this could suit some peoples' lifestyles.

Because your proposals relate to a change to the days your employees work their hours, rather than a reduction in hours, the issue is slightly less contentious. However, some staff might have childcare or other social responsibilities for which working on a weekend could cause compatibility problems.

If this approach does not work, you will need to commence formal consultation with employees and, if necessary, a trade union. This does not necessarily mean that you need to ask each employee into your office for a consultation meeting; this might be achievable if you have only a few staff but may be less practical if you have several.

You could use e-mail, or send a memo to all affected staff explaining that you intend to make the change, exactly what changes you wish to make, why you wish to make them, what impact the changes will have and when you wish them to start. State that, should anyone have a particular problem, they should see you.

If you still do not obtain consent but go ahead with the change anyway then you will have breached contract: there are various ways that an employee can deal with this. An employee may deem the breach to be fundamental, feel that they cannot carry on working under those conditions and leave. In this case, if the employee has the necessary service, they may claim constructive dismissal at tribunal. As there was no reduction in pay, the chance that a tribunal will deem the breach as fundamental is uncertain.

Alternatively, they may accept the breach and continue working. Although this is not express consent, if they continue to work without objection, in due course they may be regarded as having agreed to the change.

An employee may continue working but under protest, then subsequently claim breach of contract.

Some employees may refuse to accept the change but refuse to leave. In this case, the employer can terminate the existing contract, with proper notice, and offer the employee a new contract under the revised terms. Technically, this is a dismissal in the eyes of the law but an employer might have a defence if there is a genuine business reason for the new terms and conditions.

Peter Done, managing director, Peninsula

Source: PB – May 2010