Does an employee have any legal challenge to a variation of duties?

We are conducting a review of job descriptions (that include a flexibility clause) and wish to vary the duties of an employee. Do they have any legal challenge to this variation?

Scott: "My organisation is commencing a review of the job descriptions of a small department due to two vacancies becoming available, as we wish to ensure that we have the right skills to provide the best services," which is laudable indeed. "This review may include amending job descriptions by either removing some duties or including other duties commensurate with grade. We will be carrying out the review in conjunction with the staff. One member of staff is starting to make noises about breach of contract. Now, we have a clause in our job descriptions which states: 'It is important to note that the responsibilities may change to meet the evolving needs of the organisation.’

"This person is a member of a union, although we have no union presence or recognition in our organisation. In fact, there are only two employees here who are union members. The other employee's job is not being reviewed, as they work in a different department. I believe that we are not in breach of contract in this instance as we do have this flexibility clause in the job descriptions. However, should I approach the union to advise of this review, and could the employee have any legal challenge when the job description is amended?"

Seamus: Okay. Well, this is a lengthy question. It has a number of components to it. The basics here, just to sort of recap on it, are that change or amend responsibilities within the role on the basis that it's dependent on the evolving needs of the organisation, which would appear to be sensible because in every business, things do evolve.

We can see here at the start of this question that two vacancies have arisen within the department, which has probably prompted a review of the available resources within the department and they'll be looking at a reorganisation. In essence, essentially, the legal question comes down to whether or not, if you have such a clause in a contract, that enables you then to amend the terms and conditions of the employee.

Scott: For this one, it's not so much the terms and conditions as the duties . . .

Seamus: Responsibilities, yes.

Scott: We'll come to terms and conditions in a minute. But on this one here, they have the clause, "It's important to note that the responsibilities may change to meet the evolving needs of the organisation."

Seamus: Yes.

Scott: They're saying, as time moves on, you may have started as a typist, but you may move on to become a word processor operator, you may be working on laptops or some other kind of software-type thing. Is that really what that is getting at here?

Seamus: Yeah, I think that it is. Naturally, within any job, there could be parts of the business, due to technology, that will cease and a new element will be created. I think it really is about bringing the staff along with that. Most employees will have an understanding of that, and most of them will want to get on board with if it was a new technology or something like that, to get involved.

But the key thing here really is it's all about consultation with the employee. I mean, I think that if you were just to simply go to the employee and say from Monday morning, you're no longer doing this task and you will be doing this task, you're going to have the employee's back up straight away.

So it is about consulting and informing the employee about the various things that are happening. I suppose just run through a list of what that might look like, because people often say to me, "Well, what is consultation? What does that mean?" I don't think that it means you have to take the employee into your arms and rock them like a baby through the whole process. But I think it's important that you notify the employee of the proposed changes. You want to do that in advance and well in advance of the changes taking place.

Scott: You mentioned proposed, so if it's a fait accompli, there's little consultation there really.

Seamus: Yes.

Scott: You should be saying, "This is what we're thinking of doing." At the end of the day, they may well have the right to change the duties to some extent, because of this flexibility clause gives the right.

Seamus: Yes.

Scott: But it still has to be enacted reasonably, and that means listening to people, because the employee might have a better idea.

Seamus: Exactly. After the notification, I think that there should be an explanation to the employee as to why the amendments are required and give them an understanding of what's necessary and why it is necessary. My view would always be that it's important to back that up with written notification as well, that it's not just something that's happening orally, that if problems do arise and if the wheels come off and the person goes ahead and resigns and claims breach of contract, at least you've got notes written down and you've got a letter that you've provided or a memorandum provided to the employee or the employees that are affected.

I think also it's important for the employer to have an understanding of what the implications of the change might be for the employee. If it is a technology issue, the employee may have a fear of, "I'm not going to be able to cope with this. I'm not going to be able to do this." They may be very hesitant to get involved in it at all. So have an appreciation of that as well.

Scott: They may need training. It could be a number of things that would stop you being able to implement the change straightaway anyway as an employer.

Seamus: Absolutely. I think then importantly, as you said, you have to listen to what the employee has to say and any representations that they're going to make to you as well. Take those on board. It may be that they're very good ideas. If they're working within the department, they may have the best knowledge as to what would be the most efficient way or the best way of going forward. I think also just work with the employee to address any concerns that they have. So you're trying to bring them along the tracks.

Importantly in this question, there is this aspect of the contract and what it says. It does provide for the employer to make these amendments to the responsibilities. There is a difference, in my eyes, as I see it as a change in your duties and responsibilities and then an overall change to your terms and conditions of employment.

Scott: So if we take the I suppose the more serious, the one that impacts on not just on how you do jobs or little tweaks to your job, but actually could vary your terms and conditions, could be your hours of work, could be your location, it could be your salary, it could be a number of things, you're really looking at variations of terms. We discussed prior to broadcast a couple of cases that we're looking at. One of them was Bateman and others v Asda.

Seamus: Yes.

Scott: That is quite an old case. It had quite a broad and it's something along the lines of the company reserves the right to review, revise, and amend or replace the content of this handbook. That was deemed at the time . . . that's an Employment Appeal Tribunal case in England.

Seamus: It is, yes. That's right.

Scott: So it wouldn't set precedent here. But at the time, that was deemed to be sufficiently flexible to allow Asda to vary the terms and conditions of the few remaining employees who had not accepted the change.

Seamus: Yes. It's going back to 2009. It's a 2009 case. So that's almost 10 years at this point. But it was a very broad-brush approach by the EAT in respect of it. Specifically, what this was about was in relation to the introduction of a new pay regime. I think there was some background that Asda had purchased stores and there might have been TUPE transfers and things like that, and they were trying to align terms and conditions. But the EAT were essentially condoning it and saying if you have a clear and unambiguous contract that allows you to do this, then it's permissible. Things did move on from that. The feeling is things have . . .

Scott: Rolled back a little bit.

Seamus: Absolutely, yeah. There are two cases. There is a case of Sparks and others v Department of Transport. That's a more recent case. Essentially, that's a good case in the sense it was the Court of Appeal. They said that the changes resulted in a detriment to the employee and, therefore, it was unfair and specifically that it wasn't clear within the contract itself, that it wasn't sufficiently clear for the employer to take the step.

There was a prior case as well, Hart v St. Mary's School (Colchester), which was an EAT case. Again, it stepped back from the process of saying, just because you have a clause within the contract, that you can willy-nilly do what you like. They weren't keen on it either. They said that the initial employment tribunal had wrongly interpreted the contract of employment.

As confirmed, a unilateral power of variation on the employer at the stage, and they said that the variation clause contained within the contract — this was a school contract — that it wasn't sufficiently clear or unambiguous to allow for unilateral variation. So there has been a rollback certainly from 2009 in relation to it.

It seems to me that you would need to tread very carefully in relation to these clauses, which I see all the time in terms of employer's contracts that are provided to me to review. You'll often get the call and they'll say, "Well, it allows us to do that in the contract." I just don't think it's as straightforward as that.

Scott: If you're allowed, I suppose the lessons on this one here, even if you are allowed, you're only allowed if it's totally unambiguous. But even if you are allowed and it's totally unambiguous, you still have to act reasonably when you're implementing it. You still have to look at the change and the way it might be, and you have to bear in mind that some of those cases do not set precedent in Northern Ireland.

Seamus: Exactly. I mean I think like ultimately the commentary is saying that, from the Asda store cases, that it's no longer safe for employers to rely on variation clauses. I think that if you have an employee that is unhappy, if they're approached in the wrong way, if they're told that this has happened without the consultation, you're going to have a difficult process with the employee, and ultimately that could result in the employee resigning, claiming breach of contract or constructive dismissal. You end up at a tribunal here.

The first thing that a tribunal will say to you is, "Well, let's look at the consultation process here," because if you've acted as fairly and as reasonably and you've done your best with an employee and the employee is still saying no, the chances are that the tribunal is going to have some compassion for the employer if it has taken all the reasonable steps that it should have done. So the consultation, there's really no getting away from that. Again, consultation is all about presentation. Usually, there's a bit of give and take that has to happen in terms of it.

Further Reading:

How to Vary a Contract of Employment