A common question that we receive at Direct 2 Lawyers is what options employees have when they’re told that their role is to be changed in a way that fundamentally alters the terms under which they are employed. Examples include a reduction in pay, an increase or change in hours, a reallocation of duties, or a change in their job description. A consideration of the employee’s options in such a situation involves two issues – an evaluation of the legal situation and, intertwined with this, what options the employee feels comfortable taking in the circumstances.
Should your employer attempt to vary the terms of your contract of employment in a manner which fundamentally breaches an express or implied term of the contract then you have a number of potential options:
1. Constructive unfair dismissal
2. Breach of contract
If your employer unilaterally varies the terms of your contract of employment (whether these are express or implied) then you are potentially entitled to resign and claim for constructive unfair dismissal in the Employment Tribunal. You do, however, need to meet a number of conditions in order to successfully claim for constructive unfair dismissal. Firstly, your employer has to have breached the contract of employment. Secondly, this breach needs to be fundamental – it must go to the root of the contract. With issues such as remuneration or the duties attached to a role it is relatively easy to establish a fundamental breach of contract. However, there are other grounds which may not be so clear-cut. Whether a breach goes to the root of the contract or not depends on both a subjective (how important the employee feels the term is) and objective (how important the reasonable man would feel the term is) test. Thirdly, at least part of the reason for your leaving must be based on the breach by your employer. Fourthly, you must not take too long in deciding whether to leave your job.
The most important issue to consider in a claim for constructive unfair dismissal is that it, by definition, will entail you resigning from your post. You must think carefully about the costs and benefits of this prior to making such a decision.
Breach of contract
If your employer breaches your contract of employment and, as a result, causes you loss (for example they unilaterally reduce your wages by 30%) then you can attempt to remedy this loss by submitting a claim in the Employment Tribunal or the normal Court system for breach of contract. Which venue is appropriate depends on the particular circumstances of the case. What is important to be careful of is that you do not impliedly and unintentionally accept the new contract terms imposed by, for example, continuing to work.
If you think that you’re being discriminated against in the change of your terms of employment because of your protected characteristic (age, race, sex, disability etc.) then you must take legal advice as soon as possible on this. There are tight time limits relating to discrimination claims (as well as unfair dismissal and constructive unfair dismissal claims) of three months less one day.
If you feel that the changing of the terms of your contract of employment is an attempt to victimise you because of a protected act that you’ve engaged in (such as filing a formal grievance, giving evidence in an Employment Tribunal case etc.) then you may be entitled to file a claim for Victimisation (as well as other applicable claims) in the Employment Tribunal.
What should be emphasised is that the relevance of the particular claims above depends upon the requirements of the particular client. If the client doesn’t want to leave their job then it is obviously futile to recommend that they resign and claim constructive unfair dismissal. However, the flip-side of this is that if the client is unwilling to even consider such a possibility then they have very little leverage over their employer.