Dealing with a contractual change of hours

Here is another common question we receive through our HR Advice Line here at First Practice Management.

Q.

Due to drops in funding the practice needs to reduce the number of hours for our health care assistants. Am I entitled to decrease an individual’s hours and if so how should I go about doing this?

A.

You should deal with the decrease in hours as a contractual change. Contractual changes such as decreasing an individual’s hours of work are all about a fair process and being able to objectively justify in business terms any imposed changes to the individual concerned and or a Tribunal if necessary if you need to.

Any proposed change to hours must be done following a proper consultation process, as this forms an important part of the change process. Before instigating any changes, you must consult giving details of what the changes are proposed and the rationale for the proposals. This should be done verbally and followed up in writing. Consultations can either be done in conjunction with all team members, employee representatives or trade union representatives (if a trade union is recognised).

As part of the consultation process you should allow the staff member(s) to raise any concerns and discuss the matter freely, and allow time for a decision to be made.

It is important you keep written records of all discussions and representations in case these are challenged in the future. If the employee(s) agree to the changes, revised contracts should be drawn up and the employee(s) should sign in acceptance.

If the employee(s) will not accept the proposed change there should be a period of negotiation to try to reach agreement and consider alternative options if necessary. The practice may offer incentives and/or amend the proposal to make it acceptable to the employee(s). You may wish to consider offering a phase-in whereby the decrease in hours is introduced over a period of time. A reasonable business case presented as part of a consultation process may help this be accepted by the staff. You will then have to decide whether to enforce the changes as below.   Alternatively you may wish to consider a trail period to evaluate the effectiveness of any changes.

There are two further courses of action the practice can take if no agreement can be reached (both of which carry an element of risk):

1. Impose the change without the employees’ consent: If the employee(s) continue to work under the new terms without protest, then after a reasonable period has elapsed (a 'reasonable period' is likely to be measured in months), they can be deemed to have accepted the change. The employee(s) may treat the breach as bringing the contract to an end, in which case they may leave the practice. In such circumstances, the individual(s) potentially may claim constructive dismissal. If the employee works under the new terms but under protest, there would be no deemed acceptance and the employer would remain in breach of contract, running the risk that the employee could resign and claim constructive dismissal.

2. Terminate the employee's contract and offer to re-employ on new terms: The correct notice must be given, and as such a termination of employment would count as dismissal, the proper dismissal procedure must be followed. To be a fair dismissal there must be a valid reason for the dismissal, which in such a case would be classed as 'some other substantial reason'. There is a risk that the employee could claim unfair dismissal, and if so, an employment tribunal would examine the business reasons for the change, the consultation process and the efforts made to find a compromise and the employee's reason for rejecting the change, in deciding whether the dismissal was fair or not. If the dismissal is judged unfair, the employee would be eligible for compensation.

Please note the above guidance is of a general nature. It is important that practices ensure policy guidelines and contractual obligations are followed.

In addition to the above First Practice Management members can obtain further information via the First Practice Management website in relation to contractual changes. Alternatively members can also email specific questions about employment issues to advice@firstpracticemanagement.co.uk where your question will be treated in confidence and will normally be answered (by email) within 2 working days of submission.


Comments

Batbaatar 11/12/2015

Hi Paul, Thanks for taking the time to repsond.I think your assessment of professionalism vs free/maverick spirit is interesting as I'm not sure I see it the same way (which is why I love these conversations)! But I do totally agree with you about the make-up of any consortium or over-arching body that speaks on behalf of the sector. It needs to be representative and grounded in locally based, face-to-face work rather than ideals and rhetoric.I'm not sold on a registration scheme though. The government announced they have no plans to introduce an occupational licence so why should we create a voluntary one? What goal, purpose or influence would it have?Anyway, thanks again for commenting!


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