The difficult
negotiations over the new contract for junior doctors highlight a tricky issue
for employers: when you want to change your staff's employment contracts and
they won't agree to the changes, what can you do? Imposing the new
contract in the absence of agreement could result in claims for constructive
dismissal or breach of contract. However, the usual solution (dismissing
the employee and re-employing them on the new terms) is often not much better,
as the employee could bring an unfair dismissal claim if they don't accept the
new terms.
So what can
employers do? The best way to avoid this problem is to have well-drafted
contracts (with built-in flexibility) from the outset. But when you do need to
make changes, make a persuasive case, make staff feel that the consultation is
genuine. If you can't get agreement and
need to consider dismissing and re-engaging, make sure you explain in writing
and very clearly why the change is essential from a business perspective and
how you have tried to minimise any negative impact on staff – it is important
to have a robust paper trail as this is essential for defending any unfair
dismissal claims.
In our experience staff
often decide to accept such changes, even if they're not thrilled about them.
Treating the staff fairly during the consultation process is often the
best way to preserve the working relationship.
If you need advice
on changing existing employment contracts, please contact us so we can provide
you with more information on 01245 261883