The answer is yes* – if the Government can do it so can you… *And No
The government has confirmed that it will impose new contracts and terms and conditions on junior doctors despite the junior doctors rejecting the new contracts. The government can impose new contractual terms and conditions and so can employers in the private sector.
The government wanted to change several aspects of the contract, the main detrimental impacts include but are not limited to;
- Making Saturday working a normal working day so the NHS would not have to pay overtime rates/supplemental pay;
- Reduction in pay for night shifts;
- Reduced increase in basic pay;
- Amending pay scales and rates so they are not based on time served in that particular post but based on training, responsibilities and experience.
The government have ben consulting and negotiating new contractual terms with junior doctors and the issues have hit the headlines due to the far reaching implications like the long hours faced by many hospital medics as well as concerns over patient safety and the claims that you are more likely to die under the care of the NHS over the weekend.
Employee’s terms and conditions change often, without formal consultation via different working practices and or because of legislation, for example an increase of pay because the national minimum wage rises. Some changes are not contentious but when employers want to make changes that are, and the employee is unwilling to accept the change, the employer should tread carefully and not immediately impose new contractual terms. Just imposing a change can leave the employer not only in breach of contract but has the potential to breach the mutual term of trust and confidence as it may force the employee to resign and bring a constructive dismissal or unfair dismissal tribunal claim.
Employers need to know how to remain legally compliant when introducing new contractual terms.
- If agreement can be reached then the process will be much smoother
- Consider what change you want to make and what the justification for that change is. For example there is significant difference between wanting to reduce pay for employees to stop the business from closing than to reduce pay because you want to increase the profits.
- Look to see if the contract has a clause that aids the employer in making contractual variations.
- Always consult with the employee and discuss any proposed changes.
- Consider on a case by case basis what the implication is for each employee. It may affect some employees more than others and in different ways and to different extents.
- Listen to what the employee(s) say and why they are refusing the variation/change, there may be a compromise for both sides.
- It is best to document the process with sufficient notes, minutes of meetings and letters.
Some policies and procedures that are not contractual are unlikely to require consultation and may be changed more easily.
If the consultations fail and the employees are still resisting change then the employer can unilaterally impose new contractual terms or terminate employment but offer alternative contract of employment to the employees.
The key is to consult with employees. The employer needs to explain what changes they are looking to make and why. The employees should be given an opportunity to voice their opinions and given sufficient time to consider any changes and the employer’s proposals.
Consultations on the junior doctors change in terms and conditions started back in 2012. The reason for the contract changes was the modifications due to the NHS and promises made by the government to improve and expand emergency medical care services the NHS offers, especially at weekends.
Junior doctors have rejected the changes citing that they were still not properly rewarded for the role they undertook and the demands they faced within their jobs. It must be remembered that doctors are responsible for people’s lives and they make decisions that have life or death implications.
The majority of employers don’t need to consult with staff over 4 years but do need to consult with staff. When imposing new contractual terms employers need to make sure there are justified business reasons for the changes. Wanting to make a change on a whim will likely undermine the employer and employee relationship and lead to trouble or a swift backtrack for the employer.
If you have a contractual change you want to make or are unsure of the process that you need to follow, do not hesitate to contact us on 0330 100 8706. We will be more than happy to guide you through the process. We can also give you assistance in drafting letters to staff outlining proposals or if you want us to attend the meetings with you and the staff then please get in touch.
If an employee resigns after the imposition of new contractual terms then don’t panic. Make sure that all letters and correspondence are retained as well as minutes of meetings where the changes were discussed and seek advice.