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Monday 26 September 2016
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Extended hours – changing staff contracts without fear

Human Resources

HILARY HAMAN
BSc(Econ) FCIPD MIHM

Management Consultant

Hilary has run her own management consultancy business for the last 18 years in human resources and organisational development for the primary healthcare sector. She lives in Cardiff with her husband and son. Hilary enjoys exotic travel, sampling meals cooked by others (ie, visiting restaurants), and practising her very poor tennis technique

For some practices, adjusting to the extended hours initiative has been relatively painless.

But for many, asking staff to work longer and/or different hours has proven problematic. As well as the emotional dimension of altering staff terms and conditions, there is the very important legal dimension, which underpins any change to an employee's hours of work. Get this wrong and a practice can be sued for breach of contract and/or constructive dismissal. Just as important is the need to maintain morale and commitment while introducing unwanted change.

All employers change their staff contracts of employment on a regular basis, eg, salary increases, without either party entering into any type of formal procedure. The issue of legal compliance and sensitivity to staff morale arises when a practice wants to change a fundamental term of an employee's contract, which may be perceived as disadvantageous to the employee.

Extended hours is such a change where unequivocal acceptance cannot be assumed. Indeed, it has caused a number of problems and is a useful example of how to introduce and manage change effectively.

It is important to be clear as to the rights employees have, and the remedies they can access if a practice tries to impose a change without gaining agreement:

  • Staff can work under protest. This means that they will work the new hours but make it clear to the employer that they are unhappy and they can take out a claim for breach of contract for an employment tribunal (ET) to determine any detriment they have suffered.
  • Employees who feel sufficiently aggrieved about imposed changes can also resign and claim unfair dismissal at an ET. Such a claim will only succeed if the change is fundamental (and changing/increasing hours of work is a fundamental change) and thus causes the employee to resign. Any delay in voicing objections and resigning will damage the employee's claim. ETs consider the reasonableness of the employer. A claim for unfair dismissal will fail if the practice can show good reason for the change and that the manner and method of introducing the change was reasonable.
  • Staff can simply refuse to accept the change.

The above courses of action are less common than a begrudging acceptance of the imposed change with consequent resentment and lowering of staff morale.

Step 1 – direct communication
To avoid the above reactions, the first step is to communicate directly with staff – face-to-face (not email!) – the reasons for the change, the impact on the practice of complying with the change and the problems the practice will face by not complying. It is also useful to spell out how the partners will be affected by the change – for instance, the extra hours/sessions they will be working as a result. This gives the impression of fairness.

If staff volunteer (some may be very grateful for the extra money or time off in lieu) and/or you gain unanimous agreement to the change, then put the agreement in writing to each member of staff and implement. It is always useful to put in a review period. This gives you, the manager, an opportunity to ensure that you review the change and address any teething problems. It is also a useful device to gain agreement. People often feel more willing to agree to a change if they know they will have the option to review their decision at a later date.

If you are facing opposition to the change, or predict opposition, then start a formal consultation process. Step 1 describes the start of a consultation process – setting out the reasons for the change and the impact on the practice and individuals. This should then be followed up in writing – which is dated – stating clearly that it is the start of a consultation process and that notice is being given of the proposed change. In the letter, ask people to consider the proposals and arrange another meeting (individually, collectively or in small groups) to discuss their views.

Step 2 – persuasion
Step 2 involves negotiation. Persuade through well thought-out proposals and clear reasoning. Think through a fallback position and aim for an agreement so all feel like winners.

For example, staff agree to the new hours and gain an increase in pay for the extended hours, or enhanced calculation for time off in lieu. Listen to objections and attempt to compromise, including buy-out sweeteners. This means offering staff an incentive to encourage them to agree to the proposal. It can be, for example, two extra days' holidays for two years in return for agreement. You know your staff better than anyone, so before entering into this stage of the consultation look at what type/nature of incentives/sweeteners will encourage agreement.

Step 3 – agreements
Ensure that agreements are put in writing and are specific so that all involved are clear as to what is agreed and how it will be implemented.

"What if I cannot gain agreement?"
Following the above steps will help you gain agreement. However, if some will still not agree, what are your options?
First, review your consultation exercise in terms of the process you followed, the way you have recorded and communicated it, and its substance. If you are confident you have done as much as you can, then you have two options. Neither should be embarked upon without first taking specialised legal advice. We start with the starkest.

Option 1
If faced with continued resistance to change, before moving on to the next step consider if the change is pivotal to the continuation and success of the practice. It is highly unlikely that a practice would be able to argue that offering extended hours, as described by the Department of Health, was fundamental in this sense.

If you anticipate or are unexpectedly faced with opposition and you decide to press ahead, it is important, in order to avoid or limit the damages of the above employee's remedies, to follow the following steps. Any legal advice you do seek will address the following options and courses of action open to you if you decide to go ahead.

  • Staff who continue to resist the change should be clearly warned that the only other option will be to terminate their existing contracts.
  • If at this stage, and after continuing to consult, some staff steadfastly refuse to accept the change, notice should now be given to them in writing that their existing contracts will be terminated. The notice period should be at least the statutory minimum (as determined by the notice you would need to give that individual if you were terminating their employment) or the notice specified in their written contracts, whichever is the longer.
  • This letter should end with an offer of re-engagement at the end of the notice period on the new terms.

Giving notice merely to change the contract will be viewed as imposing the change without agreement. It is vital therefore that the employees must be put under notice to terminate their existing contracts.

Staff who refuse the new offer, and therefore have to leave your employment, may still bring a claim for unfair dismissal. Demonstrating sound reasons for the change and a comprehensive consultative exercise will probably result in the dismissal being found fair at an employment tribunal.

Option 2 – redundancy
Where an employer wishes to change a fundamental term of the employment contract, those who are perceived to be adversely affected may have the right to be considered for redundancy if they will not or cannot accept the proposed change. Again, only consider this option after genuine and thorough consultation as described at the beginning of
this article.

The key elements relevant to a redundancy in these circumstances are now outlined.

Consultation
The same principles apply as when endeavouring initially to gain acceptance of the change. In addition, the consultation must include discussion of how to avoid or mitigate the effects of the redundancy and the method of carrying out the redundancy. The consultation period should not be less than two weeks and should include the redundancy payments and any other entitlements the employee would receive – for example, pay in lieu of notice, holiday pay entitlements, etc, should the proposed redundancy go ahead.

Redundancy payments
These are set out in law and are determined by age and length of service. Practices can offer more generous terms if they wish.

Notice periods
As with any dismissal (other than for gross misconduct) the employee has the right to their contractual notice period. Giving those on notice of redundancy pay in lieu of notice is frequently offered as it gives the employee time off to search for other employment.

Time off with pay
Staff with more than two years' service and under formal notice of redundancy have the right to reasonable time off with pay, in working hours, to look for work or to make arrangements for training for future employment.

In all discussions in relation with Options 1 and 2, ensure the employee is accompanied by a companion, following the Advisory, Conciliation and Arbitration Service (ACAS) code of practice (see Resources).

Summary
It is worth noting that the frequency of occasions when changes are received negatively is often related to the general level of staff morale. Looking beyond the particular proposed change and examining the practice's style of management, its culture and climate, may shed light on the reasons why changes are not welcomed.

Consulting staff as an established management practice and fostering teamwork will affect the response given to proposed changes to the running of the practice and to contracts of employment.

Resources
Haman H, Irvine S. Good People, Good Practice: a practical guide to managing personnel in the new primary care organisations. Oxford: Radcliffe Medical Press; 2001.

ACAS. ACAS Code of Practice on Disciplinary and grievance procedures. The Stationary Office: HMSO; 2004.