We have been leaders in our industry sector for the past 20 years, and recently bought out one of our competitors, taking on their staff at our site. The company we’ve bought operated on a different working day to us, with employees working to a two-shift pattern as opposed to our three-shift one. We obviously want to change the contacts of the new starters to reflect our business, but we’re being met with resistance. People are very keen, it seems, to stick to their previous pattern of work. What does the law say about changing contracts for newly acquired companies?
The starting point is that if the sole reason for the variation in employment terms is due to the transfer (i.e. the movement of staff from the old company to the new company), then the variation is void. This includes where an employer wishes to harmonise terms - i.e. bring the transferred employees’ terms in line with those of the existing employees’. However, variations are permitted when the change is not related to the transfer and is due to an economic, technical or organisational (ETO) reason. An ETO reason is one which must be concerned with the day-to-day running of the business. This can include profitability or performance; a reason relating to the nature of the company’s equipment or production processes; or a reason relating to the management or structure of the business. If an employer wants to make a change to the working hours of the new employees then it would be advisable to seek the employees’ agreement prior to making these changes in terms. Whether employees choose to challenge to a variation to their contract depends upon the circumstances. If the change in hours has been agreed in advance or does not result in a detriment, then there may not be a challenge. However, if the changes are viewed as detrimental then there is the possibility that they may be challenged. The employer needs to bear in mind that the Transfer of Undertakings Protection of Employment (TUPE) regulations give the employee a right to resign with or without notice if there is a substantial change in their working conditions, to their material detriment. Such circumstances lead to a risk to the employer that the employee may pursue a constructive dismissal claim.
I am a practicing Christian, and wear a crucifix around my neck. The manufacturing company I work for recently updated their stance on religious symbols, saying that any ‘non-voluntary and overt religious dress’ will no longer be allowed on site, citing health and safety risks. This reeks of discrimination to me, and I know a fair few other employees (of differing religions) feel the same way. Is there anything in law regarding religious dress, and does it matter on ‘overtness’?
There is a notable case from 2010 regarding an employee’s right to wear a crucifix, which involved Exeter NHS Foundation Trust
(http://bbc.in/2yMnO0V). In this case, the Employment Tribunal found that the employee had not been the victim of indirect discrimination because the Trust did not allow her to wear a crucifix on her necklace. The facts of this particular case seem to closely mirror your circumstances. The basis of the decision of the tribunal was that disallowing the wearing of crucifixes did not put Christians as a group at a disadvantage, nor the individual involved. Moreover, the tribunal considered that the employer’s policy in this respect could be objectively justified as it protected the health and safety of staff and patients. It was recommended that in such circumstances, employers and employees engage in dialogue to try to resolve the issue so that tribunal proceedings are not necessary. The claimant appealed to the European Court of Human Rights. However, the court upheld the decision on the basis that the policy did protect health & safety and this was a legitimate aim within a democratic society.
Union influence is very strong in our company, and staff have been prone to strike at a moment’s notice. Us members of senior management feel like we are essentially being held to ransom by a particularly bolshie union rep, who has the rest of the workforce in the palm of his hand. Is there anything we can do to curb his powers? What legal authority does a company have over a union, and vice versa?
There is a strict process that independent trade unions must go through in order to be officially recognised by employers. Ordinarily, such recognition is reached by way of a series of negotiations between the trade union and employer. However, if recognition cannot be reached then there is a statutory process that the trade union can follow
to achieve this. There are statutory protections to prevent employees from suffering a detriment by their employer because they are a member of a trade union. An employer cannot prevent or deter an individual from belonging to a trade union or seek to prevent or deter an individual taking part in the activities at a trade union at an appropriate time or to penalise an individual
for doing so. If such action is pursued by an employer than an employee may make a complaint to an employment tribunal within three months of the action, subject to the complaint. Generally, the actions that employers can take against employees for taking part in strikes or industrial action is strictly limited. However, if industrial action is unofficial and the employee takes part, they can have no complaints if they are subsequently dismissed.
On the other hand, if the employee takes part in official industrial action and is dismissed as a result, then the dismissal will be deemed automatically unfair. Industrial action can limit an employee’s rights in several different ways. For instance, pay can be withheld if they are in breach of contract, as explained above there is the potential for dismissal, a breach of contract may also affect the period of continuity of the employee’s employment period and the right to redundancy pay.
BY SEAN McHALE, SOLICITOR, LEVI SOLICITORS www.levisolicitors.co.uk
