Sometimes as an employer you need to make changes to employees’ terms and conditions for good business reasons. As a first step you need to consult and seek consent, but there are times when an employee does not agree to a change and the only option is to force the change upon them.
We often receive questions regarding how to force a change on a resistant employee and the risks of doing this. Here are answers to some of the regular questions:
What would forcing a change actually mean?
When imposing a change on employees you are deciding to change a term without their agreement. This change could be as simple as change of pay date from weekly pay to monthly pay.
What steps should I take first?
Before forcing a change on to an employee it’s important to try and reach an agreement if you can. Talk to the employee about the change you want to make, and the reasons. If you can address concerns they have, and ask for feedback about alternatives, it may avoid the need to force the change through, and will at least ensure you can demonstrate that you have consulted fully.
If the change is enforceable through a flexibility or variation clause in the contract, you should still consult, as these clauses need to be exercised reasonably.
An alternative to forcing a change may be to give employees a financial incentive to consent to the proposals. This will need to be consistent and fair to all affected employees, but it can be a good way of getting a change through with much less resistance and retaining employee goodwill, so the one-off cost may well be worth considering.
What are the steps involved in forcing a changing?
If you cannot reach agreement through consultation or with a financial incentive, you have two options for forcing a change to terms and conditions.
The option to simply impose the change upon them. The other option is to dismiss them and re-engage on the new terms and conditions. Both these options can be risky, especially if managed incorrectly.
If you choose to dismiss and re-engage, it is important to note that the dismissal should be carried out using normal fair dismissal procedures, for example allowing the employee to be accompanied to the meeting by a companion.
What are the risks of forcing a change?
If the only option is to force a change there are a few risks that come with this. If you’ve imposed the change without dismissing and re-engaging, an employee could potentially bring a claim for breach of contract, or could resign and claim constructive dismissal.
If you’ve dismissed and re-engaged, an employee could claim unfair dismissal.
An employee could also claim discrimination if they feel they have been discriminated against when the change was imposed upon them.
If the employee was introduced to the business through TUPE, changes need to be considered carefully as you could be in breach of TUPE regulations by forcing a change on them.
With unfair dismissal claims, compensation is based on actual financial losses, therefore although an employee who has been dismissed and re-engaged could bring a claim, if the financial losses they incur are minimal, they may decide it is not worth bringing a claim.
How can I minimise the risks?
There are a number of ways to reduce the likelihood of claims bring brought, and reducing the likelihood that a claim would succeed, as follows:
- Consult fully, seeking agreement, input, feedback and alternative suggestions.
- Make sure your business need is strong and can clearly be demonstrated
- Make sure you have thoroughly explored alternative ways of achieving what you need, and have documented that.
Although a force to a change can in theory be implemented, it is always best to reach an agreement mutually with the employee. If you need to make an essential change to terms and conditions in your small business, do get in touch for some advice on the safest way to proceed.