Change can be scary and unsettling.  

Some employees may openly accept change, thinking about how it can positively affect their role and work. Others may mistrust something new, but grudgingly accept it. And there may also be the odd one or two that flat out refuse it, which means employers need to find ways to overcome resistance.

Employers may wish to make changes because of a change in the law, new technology, changes to the market, to cut costs or raise capital, or in response to changes in service or product demands. Whatever the change you wish to implement, you need to consider the Employment Law implications, the risks and the costs involved.

Contracts of Employment

In most cases, employers will need to consult before making a change to a Contract of Employment. If you fail to do this, it may be considered a breach of contract.

Where it has been agreed to vary the contract and the change relates to any of the particulars in the written statement, the employer should give written notification of the change to the employee within a month of the change taking effect. If you change terms and conditions that are not included in the written statement, you must inform your employees of where they can access information about the change, for example in the Employee Handbook.

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If you cannot reach agreement with the employee, you can serve the individual employee notice that you will terminate the existing contract and offer a new contract with the new employment terms and conditions. If you wish to do this with 20 or more employees, you have an obligation to consult collectively with employee representatives or, if applicable, trade union representatives.

Always seek legal advice before dismissing and re-engaging employees because if you get it wrong you could end up with unfair dismissal claims. Make sure you have a good business reason for implementing the change, have consulted with the employee(s) and made an effort to get them to agree. By ensuring the dismissal falls within one of the five legitimate reasons for dismissal, acting reasonably in the circumstances and following a fair procedure, the dismissal should be considered fair.

Redundancy

Ask yourself the following questions:

• Are you closing the business for which the employee was employed?
• Are you closing the place of business where the employee was employed to work?
• Is there a reduced requirement for employees to carry out work of a particular kind?

If the answer is ‘Yes’ to any of the above, it is a redundancy situation. There are some key elements which are essential to a fair redundancy process, including warning the employees of potential redundancies; creating and applying fair and non-discriminatory scoring selection criteria and thinking about suitable employment options. If it affects 20 or more employees at one establishment within any period of 90 days or less, collective redundancy obligations will apply.

Those who have worked for you for two years will be entitled to a redundancy payment and the amount they receive will be dependent on their age and length of service. Additionally, you need to think about whether there are specific rules that affect certain groups of employees, for example, you must offer the suitable alternative job to the employee on maternity leave even if there are other colleagues who are more suitable for the role.

Transfer of undertakings

If the change involves a business transfer or a service provision change, you need to be aware of the obligations under the Transfer of Undertaking (Protection of Employment) Regulations (TUPE). It can apply in a number of situations, for example, if all or part of an organisation is sold or transferred to another organisation, an employer wins or loses a contract to provide services to someone else or an activity that is taken care of in-house is outsourced to a third party.

TUPE ensures that employees who are employed by the outgoing employer automatically become the employees of the incoming employer. The new incoming employers take over the employees’ contracts of employment, terms and conditions of employment and collective agreements.

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