WS9- varying terms and conditions and negotiating
settlement
Outcomes
1. Advise an employer on the implications of varying employees’ contracts of employment and
devise a strategy for dealing with variations
2. Assess the strengths and weaknesses of a client’s case in preparation for negotiation of a
settlement.
3. Conduct a negotiation on behalf of a client and advise as to the most appropriate method of
recording a settlement.
Varying employee’s contracts of employment
ACAS Guide on varying Þ Check to see if the contract allows the change, if it does it may be possible to
terms change the terms
Þ Unilateral changes without consent are often repudiatory breaches
Þ Always best to consult and get consent to the changes
Where employees do Þ Always aim to discuss first and reach any alternative solutions
not agree to the change Þ If the employer unilaterally varies the contract, whilst it achieves their outcome,
there is a breach and opens up possibility of WD claims when employees are
constructively dismissed
Þ Employee may work under protest when they are currently not in the position to
leave at that moment and may require more evidence before presenting a claim-
this will not affirm the breach, however, should not work under protest for too long
Þ Working under protest may be an incentive for the employer to settle instead of
liability to claims
, Potential claims arising from unilateral variation of working hours
Group 1:
Female tutors who argue that shift pattern directly impacts their caring commitments to their children and cannot get
child- care for that late on the night shift
Wrongful dismissal Þ May argue constructive dismissal based on the variation
Þ Where the employer has committed a repudiatory breach
Þ Express term of working hours- dependent on their contracts or s.1
statements which need looking at in case there is a flexibility to alter
hours in their clause
Þ Implied term mutual trust and confidence
Unfair dismissal Þ Actual dismissal for refusal
Þ Constructive dismissal for breach of implied terms
Þ S.98(2) potentially fair reason – SOSR
Þ SOSR- accepted as reorganisation impacting working hours, refusing to
vary terms
Þ S.98(4) act reasonably?
o Iceland v Frozen Foods v Jones
o Should look at negotiation first/ alternatives
o Balance of commercial needs against detriment of employees
Indirect discrimination Þ S.19(1) equality Act 2010
Þ S.11 protected characteristic of sex
Þ Unlawful act 39(2)(d) subjecting to any other detriment- variation
Þ PCP 19(1) is the requirement to work the shifts
Þ 19(2)(a) applied to those without PC, applied to all tutors
Þ Group disadvantage? Yes 19(2)(b) mothers with caring responsibilities,
it is widely accepted that mother’s have a larger proportion of caring
responsibilities and 8pm is unconventional for childcare and will incur
significant expense, putting them at a clear disadvantage to those who
do not (London Underground v Edwards)
Þ Particular disadvantage- 19(2)(c)
Þ 19(2)(d) proportionate means of achieving legitimate aim?
Legitimate aim- costs and the means of doing so is introducing shift pattern
Proportionate?
Achieved in other ways
Þ Voluntary shift pattern with incentive?
Þ Shared flexi shifts, see if they could do some but not all the days?
Later dismissed after stating an s.27 EQ 2010
intention to bring claims Þ No need to have continuity of service and applies to workers and
employees
victimisation Þ Present within 3 months 123
Þ 39(2)(c) dismissing- unlawful act, employer has the burden to show their
conduct was not unlawful s.136
Þ There has been victimisation as they were subjected to a detriment
because of proposing to bring proceedings
Þ No defence
settlement
Outcomes
1. Advise an employer on the implications of varying employees’ contracts of employment and
devise a strategy for dealing with variations
2. Assess the strengths and weaknesses of a client’s case in preparation for negotiation of a
settlement.
3. Conduct a negotiation on behalf of a client and advise as to the most appropriate method of
recording a settlement.
Varying employee’s contracts of employment
ACAS Guide on varying Þ Check to see if the contract allows the change, if it does it may be possible to
terms change the terms
Þ Unilateral changes without consent are often repudiatory breaches
Þ Always best to consult and get consent to the changes
Where employees do Þ Always aim to discuss first and reach any alternative solutions
not agree to the change Þ If the employer unilaterally varies the contract, whilst it achieves their outcome,
there is a breach and opens up possibility of WD claims when employees are
constructively dismissed
Þ Employee may work under protest when they are currently not in the position to
leave at that moment and may require more evidence before presenting a claim-
this will not affirm the breach, however, should not work under protest for too long
Þ Working under protest may be an incentive for the employer to settle instead of
liability to claims
, Potential claims arising from unilateral variation of working hours
Group 1:
Female tutors who argue that shift pattern directly impacts their caring commitments to their children and cannot get
child- care for that late on the night shift
Wrongful dismissal Þ May argue constructive dismissal based on the variation
Þ Where the employer has committed a repudiatory breach
Þ Express term of working hours- dependent on their contracts or s.1
statements which need looking at in case there is a flexibility to alter
hours in their clause
Þ Implied term mutual trust and confidence
Unfair dismissal Þ Actual dismissal for refusal
Þ Constructive dismissal for breach of implied terms
Þ S.98(2) potentially fair reason – SOSR
Þ SOSR- accepted as reorganisation impacting working hours, refusing to
vary terms
Þ S.98(4) act reasonably?
o Iceland v Frozen Foods v Jones
o Should look at negotiation first/ alternatives
o Balance of commercial needs against detriment of employees
Indirect discrimination Þ S.19(1) equality Act 2010
Þ S.11 protected characteristic of sex
Þ Unlawful act 39(2)(d) subjecting to any other detriment- variation
Þ PCP 19(1) is the requirement to work the shifts
Þ 19(2)(a) applied to those without PC, applied to all tutors
Þ Group disadvantage? Yes 19(2)(b) mothers with caring responsibilities,
it is widely accepted that mother’s have a larger proportion of caring
responsibilities and 8pm is unconventional for childcare and will incur
significant expense, putting them at a clear disadvantage to those who
do not (London Underground v Edwards)
Þ Particular disadvantage- 19(2)(c)
Þ 19(2)(d) proportionate means of achieving legitimate aim?
Legitimate aim- costs and the means of doing so is introducing shift pattern
Proportionate?
Achieved in other ways
Þ Voluntary shift pattern with incentive?
Þ Shared flexi shifts, see if they could do some but not all the days?
Later dismissed after stating an s.27 EQ 2010
intention to bring claims Þ No need to have continuity of service and applies to workers and
employees
victimisation Þ Present within 3 months 123
Þ 39(2)(c) dismissing- unlawful act, employer has the burden to show their
conduct was not unlawful s.136
Þ There has been victimisation as they were subjected to a detriment
because of proposing to bring proceedings
Þ No defence
