What are the consequences for my partner if she does not sign a new contract with different hours from her current job?

Question

My partner works for a large retailer in the UK (England), enjoys her job and was given the hours on a nightshift she wanted about 6 months ago, (4× 8 hour shifts, 10pm - 6am). Sometimes goes in early and leaves late to help out.  Anyway, they want her to change her hours and sign a new contract which she doesnt want to do.  They say she must hand her notice in then,  I've said that it's up to them to terminate your employment so you can claim benefit while looking for something else?  She's heartbroken, she's a grafter and her colleagues can't believe the new management they have are prepared to lose her.

Thanks for reading, any advice would be much appreciated.

Brian Davis · Accepted Answer

You are right. It’s not for them to tell her to resign because a resignation is the decision of an employee to leave employment. If they want to make the decision for her to leave, they need to dismiss her.

If she’s been with them as an employee tor more than 2 years continuously she has protection from being unfairly dismissed. They must follow a fair process and have a fair reason (there’s a list of potentially fair reasons for dismissal which is outlined in law).

If she hasn’t got the 2 years service or isn’t an employee, she needs to decide whether it’s better to resign and be unable to claim benefits for a while (I’m not a benefits expert so unsure how long they sanction you for) or whether to stay and see if they dismiss her, possible get better benefits, but also might cause difficulty getting a new job if new employers know she’s been dismissed.

Sorry she’s been put in this situation.

Answer

Definitely don't hand in the notice, as she won't be entitled to full unemployment benefits if she is deemed to have left paid work of her own accord. Probably best to contact the JobCentre and get her to explain her situation to them while still employed.

Cesar Mcneill

28th January 2022

+78

81 upvotes

Answer

You're 100% correct that they can't force her to resign. As for whether she should or not, there's pros and cons to both resignation and dismissal - if she resigns, then as you've said that will affect her ability to get benefits, but if she were to be dismissed then that could definitely come back to bite her in finding a new job. If she has experience and is comfortable explaining the situation in an interview, then that might not be too much of an issue, especially if there is a manager/supervisor who'd be happy to provide her a reference, but ultimately it's her call as she knows her situation better than any of us can. In any case, her current job is about to become untenable so she should start looking for a new position immediately. If she can secure a new job, then that will effectively solve the issue before it becomes a problem.

Louise Thompson

28th January 2022

+10

13 upvotes

In any case, her current job is about to become untenable so she should start looking for a new position immediately. If she can secure a new job, then that will effectively solve the issue before it becomes a problem.

Answer

I don’t believe she has to agree to a change of contract. She’s still employed under the terms of her original one. Is she in a union? Might be an idea to talk to a rep who will have more idea.

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I would highly recommend speaking to citizens advice.
When work changed my hours we had to go through a consultation process and they had to see what reasonable adjustments they could make to meet me part way. Ultimately if I didn't agree I would have lost my job, but it wouldn't have been me quitting and it's a really easy thing to explain to future employers.  It's important to get clarity on why the hours are changing, if it's because the night shift won't exist anymore you might be looking at redundancy so it's important to get everything from them in writing as well. They should have full documentation for the reason for the change etc.

Good luck

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She has everything going for her including the support of her colleagues. 
She needs to fight this ridiculous ruling from management....could be a groundbreaking case to help others.

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I believe they would have to do an constructive dismissal. It's a special type for people who won't sign a new contract.

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Definitely get your partner to speak to her union rep and ACAS. Is the company formally implementing a fire and rehire for everyone's employment contract or is this just affecting your partner? Given she has been employed for more than two years, she should absolutely not resign herself even if pressured to. She could have a case for unfair dismissal if they choose to dismiss her.

Alphonse Hurley

28th January 2022

+2

5 upvotes

Answer

This is a dismiss and re-engage situation to vary contractual terms. As pointed out prior the employer should not change contractual terms without agreement. This is called a unilateral change and wold lead to a likely successful constructive dismissal claim as changing the terms would be a breach of an express term and a breach of the implied trust and confidence.

Instead the employer will collectively and individually consult about the changes to get acceptance from employees. If it's collective consultation it is likely the union will already be involved if they are recognised.

If the employer has a sound business reason for the change and the majority of other employees accept the change but OP doesnt then it could be the dismissal (with re-engagment refused) could be fair for some other substantial reason.

Whether it is fair will be a question of whether dismissal is within the range of reasonable responses considering all the factors including the reason for the change and the extent of consultation.

Going back to the question it is not correct that OP has to resign and would not advise they do so.  Up to the employer to terminate then either have to accept the changes or refuse and take chance with litigation.

If OP is only person affected it may be more difficult for employer to show there is a good business reason as bringing contracts in line is unlikely to be a good one.

If you are not going to accept the changes you need legal advice on how to present why you can't (make it more difficult for employer to show dismissal is reasonable) and/or negotiate a settlement agreement if you feel you can no longer work there.

To confirm I am legally qualified.

Edit:

Have just seen a further post whilst typing the above. States there is a flexibility clause. If there is such a clause this should be reviewed as if it is enforceable the position of OP is considerably weaker as the employer is not changing contractual terms but merely relying on an existing term to change working hours.

Revised advice - get the union or anyone legally qualified to review the contract. But advice stating do not resign still stands subject to further advice.

Answer

telling someone to resign is like firing them without paying them a month in lieu

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Ask them to put the order to resign in writing. Don't resign. If your partner resigns then it becomes constructive dismissal as opposed to unfair dismissal. Constructive dismissal has a process and a clear definition that you must follow. If they put it in writing buy a nice bottle of wine because your partner is getting paid.

Answer

If she's working for a major retailer, she needs to get in touch with ACAS. This is well out of line; also depending on the retailer, if she has a union shop steward (USDAW or GMB, depending on which retailer) it's worth raising to the union for their opinion.

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I can smell the clubcard here. Usdaw are usually pretty good with stuff like this. She should be able to call them directly and get it sorted sooner if she can't get easy access to a rep whilst working her regular shifts.

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To take a slightly different approach from most people here, who has said this to her? Her Manager or someone from HR?

I have worked in large multinationals in Retail and this seems like an issue I have come across before. It sounds like the new Store Manager want's to change the store to how they want it to be run. What they are doing is wrong and leaves the company open to legal trouble.

I would consider speaking with your Companies HR. Remember they are there to protect company, not you, but in this case it sounds like protecting the company will also be protecting you.

If the Store Manager is doing this off their own back, and has not been told to by HR, then they could end up in big trouble.

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In regards to the benefit side, it would not automatically be a sanction if you resign from a job. The circumstances will be taken into account.

Answer

Contrary to al to of the advice here I would say that the company probably do have the right to alter the rostered hours.

Tesco, for example, have perm contracts that define nighttime work as between 10pm and 8am and that they can roster you for any time within these hours subject to maximum working hours and days you've agreed to work.

Unless there is a specific contractual clause saying that the hours worked are different then they are within their rights and the OP's wife would need to resign if they did not work to contract.

If however the OP's wife was on a day time contract which got moved to nightime 6 months ago but without a contract is its more arguable that the new times were say 10pm to 6am but even then if the standard contract has hours in, and I think Tesco has a dual clause for daytime and night time working, then I think their case is strong.

Sorry if this isn't the news you were hoping for.

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I really hope you have it in writing that they told her she needs to resign because she absolutely doesn't and if they fire her then she has a lot of evidence for unfair dismissal. She's working her contracted hours. If that doesn't suit the company then they will need to make her redundant and she'll get bucks for working there 8 years! So, just hold out. The most likely outcome is they'll negotiate better hours for her that she's happy to agree to.

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First thing your SO needs to do is find their copy of employment contract and ring their union helpline if bodies on the floor are few and far between ATM.

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Trouble is... IF and that's a big IF this was a face to face discussion, and what you portray is what was said. Then anyone in this situation has to prove that this is what was said. Management could flat out deny it or claim it was not said in the way which is being claimed. I myself have been in a situation like that previously.

Also is she on a fixed hour contract? Maybe the reason for contract change is to change it over to zero hour (I suspect it is fixed hours otherwise I don't see the need for the change as zero hour would allow the employer to choose any hours they wish). I suspect this may be the reason behind it. In terms of a flexibility clause I believe a two hour change in shift times is more than acceptable for an employee to change to if there is such a clause.

However if there is a refusal to not sign onto the new contract (assuming this new contract hasn't been read) then employment could also come to an end as the employee has refused to sign and agree to the updated policies of the company for example. What needs to be done is both contracts need to be read through thoroughly.

If it is just the two hour difference but the original contract has a flexibility clause and the difference is two hours I honestly believe there is not a great deal that can be done.  However I can only speculate at this point as I have no idea of the contents of either contract and it would be unfair to the employer and employee for me to assume based on my experience what either contracts contain.

I have also worked for a large Supermarket and I am not sure of many people that don't have a flexibility clause in their contract or a clause that specifies that the employer can amend the contract with enough notice given.

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You were asked to edit into your post that the contract very likely has a statement that they can change their hours, this will change the advice given to you. Why not include it in your post?

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Is she in a union?

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They want her to resign because if she’s been there longer than 2 years (likely from the fact they want her to resign) she has certain protections and they would need to make her redundant or find a reason to dismiss her.