Jumping too Early

We live in an age of continual and rapid change. This affects all of us in all sorts of ways. Whether you think this is good or bad, it’s a fact of life that is best dealt with by positive thinking.

In employment jobs are constantly changing, evolving, being created and ceasing to exist. The old idea of a job for life simply no longer exists.

This process of change naturally leads to issues for both employers and employees: employers want the flexibility to change the way their employees work, to ensure their businesses remain competitive and as profitable as possible. Employees normally want as much certainty as possible. This means they want the security of knowing their job will be there next week and the stability of knowing that the job is not going to unexpectedly mutate into something they cannot stand.

As a general rule, employees are expected to take small changes in their jobs in their stride but the situation is different with bigger changes.

Let’s look at an example.

Sarah is a shift leader in a manufacturing company. She has worked for the company for 10 years. She works 9 to 5.30 Monday to Friday. The company is under financial pressure and responds to this by asking all its shift leaders to work 6 days a week. Some agree, Sarah does not. Ian, the personnel manager, tries to persuade Sarah but because she is not being offered any more money and her contract states that she is only required to work Monday to Friday she still refuses.

Ian writes to Sarah giving her 10 weeks’ notice of the termination of her contract and offering her a new contract working 6 days a week and starting from the day the old contract ends.

Sarah is disgusted and resigns claiming constructive dismissal.

She says that by giving her notice the company have breached the term implied in everyone’s contract of employment that employers and employees will treat each other properly. This is called the implied term of trust and confidence.

Does she win or does she lose?

She loses.

The company say that Sarah’s contract of employment requires them to give her 10 weeks’ notice to end it. They gave her notice in accordance with the contract. The law says that acting in accordance with an express written clause in the contract cannot amount to a breach of an implied unwritten clause.

The Employment Tribunal agree. Because there was no breach of any part of Sarah’s contract she was not entitled to resign and so her constructive dismissal claim fails.

What were Sarah’s options, assuming that she was never going to agree to work 6 days a week?

Firstly, she should have raised a grievance. Assuming that was rejected she should have worked out her notice, as given to her by the Company. She could then try to bring a claim for unfair dismissal.

However, the company will still be able to defend a claim of unfair dismissal if they could show sensible business reasons for their decision to extend the working week and show that they had consulted properly with Sarah and listened to her objections.

The lesson for employers: you can make changes to the way your employees work if you have good reason and act properly.

The lesson for employees: do not assume that your job is for life and do not jump too early.

Published 27/09/2006.