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But is it lawful? Changes to terms and conditions of employment

View profile for Martha McKinley
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The government’s proposals to change the hours senior doctors are required to work have been well publicised in recent months. Jeremy Hunt has indicated today that if a deal can’t be reached with the British Medical Association, he intends to force consultants to work at weekends whereas at present they are able to opt out of shifts on a Saturday and Sunday provided they are available on call.

A question many employees ask is whether their employer can lawfully vary important terms and conditions such as working hours. The first port of call is always the contract of employment. If agreement cannot be reached between the parties regarding the proposed change, then the contract may still allow an employer to withdraw or change certain provisions of it. For example, contracts of employment often include a “mobility clause”, which allows an employer to alter the place where an employee works. Within certain limitations, exercise of this clause on the part of the employer will generally be a lawful variation.

In the coming weeks, negotiations will be ongoing between the BMA and the government regarding the proposed changes. Provided that the contracts of the doctors in question include a clause incorporating “collective agreement”, then any agreement reached during these talks will be legally binding as the employees have agreed to be bound by the terms settled by the union.

The Health Secretary has stated that if the BMA doesn’t agree to the new terms on behalf of its members, he will make unilateral changes to consultants’ terms and conditions. An employer who announces changes to contracts without the consent of the employees in question will acting in breach of contract, which is a calculated gamble.

There are a range of options available to an employee in these circumstances, including refusing to work to the new terms, resigning in response to a fundamental breach of contract (if this has in fact taken place) and “standing and suing” in the civil courts. As a last resort, an employer may choose to terminate the old contract with the necessary notice, and offer the employee new terms and conditions in the form of a revised contract starting immediately upon termination. There will be no breach of contract in these circumstances, but the employer then faces the risk of an unfair dismissal claim unless it has followed a fair process and can show that there was a potentially fair reason for the termination. 

Seeking to exercise a flexibility clause, consulting on new terms and conditions and deciding whether to dismiss and re-engage: this area of employment law is fraught with hidden pitfalls for employers as well as employees, and as such agreement with the BMA is likely to be crucial to the government’s vision of a seven day National Health Service.

By employment law solicitor, Martha McKinley

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