Old contract and redundancy

[Stucco_67]

Hoping for some advice here but essentially my employer is looking to change my job description and ask that I now work weekends, which I am reluctant to do. This would involve being 'on call' for any issues that arise for other employees (without additional pay or compensation of time to me), that I would need to deal with as they come in. They have advised that this is the new job role and my existing job no longer exists so, despite their claims that redundancy is not option, I feel it is every bit a cog in the conversation. This is a relatively small business with a few offices in the south and the last contract I signed was in 2014, before a buyout from the existing owners. I have continued to work in this role since that contract and haven't been issued with a new contract since.

Can I ask whether this could be considered reasonable to request redundancy in this scenario?

Also, the previous owners set contracts for fixed terms of 48 months, meaning that while the contract is no longer technically valid, I've continued to do this role - would this have any impact to either employer or employee?

Thanks in advance for any advice.

[ULA]

It sounds more like your employer is trying to change your terms and conditions of employment.

What are your current hours of work as stated in your 2014 contract and are they now trying to change it to?

Was your 2014 set out as a fixed term 48 month contract?

[Stucco_67]

Thanks for the reply, Ula.

Having gained access to the latest contract (and one I'd clearly missed) - there was one in 2016. This states that I'm employed on a 39 hours a week contract 8.30am - 5.30pm, Monday through Friday.

The contract's final term states 'This contract is based on a fixed term contract of 12 months'. This is the final contract signed but only by me - there is no space for the employer to sign, although I'm not sure how important that is.

[ULA]

So the fact that the last contract you had was dated in 2016 and you have continued to work on that basis and your employer has continued to pay means that there is effectively a contract in place and an "implied agreement" by the employer that the end date has changed.

In addition an employee on fixed-term contracts for 4 or more years will automatically become a permanent employee, unless the employer can show there is a good business reason not to do so. I would suggest that you would potentially qualify under this, unless the good business reason can be applied.

Given that your last contract was based on a 39 hour week 8.30am - 5.30pm, Monday through Friday what are they now wanting to change your contract to in terms of hours and defined days of working.

What requirements have been given around being "on-call" such as:

1. Can you remain at home?
2. Do you have to respond within a certain amount of time?
3. Will there be a need to travel?

[Stucco_67]

I would still be in a Monday to Friday 8.30 - 9.30am role but the on call element would mean I would be available outside office hours to deal with any sub-contractors who had difficulty.

For example - if one sub-contractor could not fulfil their work with us that day then i would need to find another at short notice - if I found one within 5 minutes, the job is done and if it took me four hours, then so be it. I can do it from home and there would be no need to travel but I would need to be almost immediately available to take the call.

They have offered me the equivalent of £30 per weekend for doing this in the form of a pay increase but I'm more concerned that 1) it would mean I can't really plan anything at the weekend for needing to be available and 2) The average time to sort a typical issue is around 2 hours. If there was two issues per weekend, that would again take a large chunk of my weekend for not a great deal of financial re-dress. My employer has, off the record, said that this is the role and there is no possibility of redundancy and if I refuse the new terms, my only option is to re-sign.

With regards to the contract - would all the terms in the contract remain part of the 'implied' element, despite it being a fixed term 12 months? In the terms, there is a clause stating that I must not work for another 'competitor' for 2 years after leaving employment. I've done this role for 15 years now and so I do think that, if my employment ceases here - eligibility for redundancy or not - I would stand the best chance of being re-employed in the same sector. What are the re-percussions if I find work with someone they consider a 'competitor'. For clarity, I have had no conversations whatsoever with any other competitor at all, just worried that this would restrict my opportunities.

Thanks for your help so far - it's much appreciated and will happily donate.

[ULA]

What the employer will be arguing is that the job still exists, it is the terms and conditions surrounding the job that are changing. If the job still exists then this is not a redundancy situation, it about a change to the terms and conditions under which you are employed to do the job.

An employer can initiate a process for changing terms and condition, however they have to to this in a fair way by fully consulting with you and agreeing any changes. However, if you do not agree the law does recognise that employers have to adapt to changing market conditions, and that sometimes the contract of employment must be varied to reflect this.

If your employer has given reasonable and due consideration to the objections ( I suggest you can use what you have stated in your post #5 in terms of the financial compensation for what may be the practical implication of being "on call") and any alternative suggestions that you put forward, but deem those suggestions to be unworkable, then they can terminate your original contract and offer a new one in its place on the new terms and conditions. There has recently been a lot of press which you may have seen and it has become tagged as "fire and rehire".

What you can do about this is once the consultation process has been completed, if you do not agree to the changes, then the next stage would be for you to raise a written grievance. If you do not tell your employer you disagree with the change, this will be taken to mean that you’ve accepted it.

Other alternatives you have is to continue working 'under protest' for a while but you cannot do this indefinitely without taking further action. This further action could take the form of making a claim to an employment tribunal likely to be breach of contract, or, an extreme option would be resigning from your job and claiming 'constructive unfair dismissal’. Both of these actions would need to be very carefully considered and you may be well advised to speak with a legal professional before taking such action. The final option would be to accept the changes to your contract whilst looking for other employment, which leads me to your other question on the restriction clause.

My initial thought is that two years may be considered unenforceable by the courts, however it would be useful for you to post up the clause.

[Stucco_67]

Sure - the clause is as follows;

12. Future Restrictions
You may not work for another competitor of XXXXX for a period of 24 months after termination of this contract. You may not establish a business which may be considered 'in competition' with XXXXX for a period of 24 months after termination of this contract. You may not canvass for emplyees, partners or associates of XXXXX for a period of 24 months after the termination of this contract.

In follow up to the above - the new role contains a lot of new responsibilities and the removal of others. The removal of the other roles have been allocated elsewhere in the business and, yes, the reason given is that the business needs to adapt after covid.

[ULA]

Thank you for posting up the Future Restrictions clause, my initial thoughts are that 24 months is a long restriction period and may well not stand up in a legal setting. Is your position senior?

What you have described in terms of changes to role responsibilities sounds like a potential restructuring situation in order for the business to as it says "adapt after Covid". Whether the restructuring of role amounts to a redundancy situation is difficult for me to advise.

What discussions have you had with your employer so far?