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HR buddies

The Covent Garden HR Buddies is an initiative facilitated by Clarkslegal to offer the London HR community the opportunity to meet with like-minded peers, attend relevant seminars and workshops and boost your knowhow of the issues specific to this sector.
 
It’s free and open to anyone interested in HR. It sets its own agenda, so it can be purely social or facilitate presentations to help prevent HR problems for companies in the London area. So if you want to network face to face contact
buddy@clarkslegal.comClick here for further details about our next HR Buddies event.  

If, alternatively, you wish to network online with other HR professionals, then using the discussion forum below, is your ideal opportunity to do so.

Please feel free to post new queries or questions, and/or reply to ones already posted. All you have to do is register a few details, then you will be ready to post your thoughts.

You can post a new query by selecting the tab "new thread". To reply to a post, select that post and then choose the "reply" tab.

Discussion zone
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  Discussions  Buddy's question time  Contractual cha...
 Contractual changes
 
creynolds
94 posts
Joined
12/12/2006

Contractual changes
Posted: 01 Apr 08 12:16 PM

This week buddy was asked:  To cope with current market pressures our business is having to extend the geographical areas that our field sales employees cover.  After a period of consultation with our sales employees about this, we are now imposing those changes on them.  All of the employees save for one has accepted these changes.  The employee in question said he would work ‘under protest’ but is now refusing to work in his new extended geographical area.  Is he entitled to do this, and how should we respond?

Sarah_Ireland
36 posts
www.employmentbuddy.com
Joined
10/2/2006

Re: Contractual changes
Posted: 07 Apr 08 10:56 AM

Buddy says:  The options an employee has when an employer seeks to impose a unilateral variation of contract on him are as follows:

  • Agreeing to the variation you have imposed;
  • Resign and claim constructive dismissal;
  • Refuse to work under the new terms, and force the employer to take what steps it thinks appropriate; or,
  • ‘Stand and sue’, i.e. working under protest and seeking damages (either for breach of contract, or for unfair dismissal).

It seems that your employee is attempting to ‘stand and sue’, however if an employee is working under protest in this way then he must abide by the new contractual terms that you have imposed, even though he is doing it under protest.  If he refuses to work under the new terms (in this case if he is refusing to work in the extended geographical area) then this is likely to be viewed as a failure to obey a reasonable instruction.  In this scenario the disciplinary procedure should be followed in relation to his refusal to work as requested.

Additional info

The options available to an employee who faces unilateral variation of contract were are as listed above, this was recently reaffirmed in the Employment Appeal Tribunal (EAT) case of Robinson v Tescom Communications.   In this case, the employee agreed to the changes 'under protest' but then refused to work under the new terms.  The employer hence invited him to a disciplinary meeting and ultimately dismissed him for failing to obey his employers reasonable instruction.  The EAT held that the decision to dismiss him was fair as, having agreed (even though under protest), the could not then renege on this agreement.  The dismissal was within the band of reasonable responses.

In such a scenario an employer should always ensure they follow the statutory disciplinary and dismissal procedures, as failure to do so could render the dismissal automatically unfair and result in an uplift of any compensation awarded.

  Discussions  Buddy's question time  Contractual cha...
 
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