So, you’ve identified the changes you want to make to employment contract and employee handbook templates. Making changes to employment terms is not just about the law, but about timing, patience, pragmatism and reason!
If you have any questions or would like further support with anything below, don’t hesitate to get in touch. We’ve also created an easy to use flowchart which summarises the legal position below. Click here if you’d access to it.
A summary of your options…
1. Are you making changes to contractual terms or just to policies? If you’re not changing contractual terms you just need to communicate the changes (and ensure everyone reads them!)
2. Your employment contract might allow you to make some small changes without securing the employee’s agreement – if so, communicate the change in accordance with the contract (it’ll usually say give notice and put it in writing – or something like that). Otherwise:
a. Try and reach agreement (in writing) with affected employees and ask them to sign (think about making changes around the time you increase salaries or give something more to your teams!);
b. Make the change in the knowledge the employee could resign and claim constructive dismissal (or stay with you but sue you for any disadvantage they suffer);
c. Make the change in the hope that the employee indicates acceptance through their behaviour (if they disagree with one new term but accept others (impliedly through their behaviour) you can argue that they’ve accepted all of the changes);
d. Use a ‘fair process’ to explain why the changes are for ‘sound business reasons’ and vital (assuming that they are), if still not accepted, terminate employment offering reengagement on the new terms (there’s a bit more to it than this so take advice!).
There’s a legend which says that ‘formal consultation’ with employees is required where changes are proposed. That’s not the case! ‘Consultation’ is only required where changes aren’t accepted and you consider it likely that you’ll dismiss 20 or more employees as a result (as in 2.d above).
Ps… The above assumes that you’re not changing the terms of employment of individuals who have TUPEd across to you, or who are subject to a collective agreement. Take advice if that’s the case!