Employment Law: Unfair Dismissal - Employer Succeeded in Changing Terms of Employment

Good News for Employers wishing to change the terms of employment of employees, however, employers must still take care.

In Scott & Co v Richardson [2005], the Dependant, Mr Richardson, who worked for a Scottish firm of debt collectors, refused to accept his new terms of employment which required him to visit defaulting debtors during the evenings. Mr Richardson agreed to work evenings but only if this would continue to attract overtime payments as had previously been the case. Scott & Co tried for seven months to persuade Mr Richardson to change his mind but he refused, finally issuing an ultimatum that his employer should either accept his position or dismiss him. They chose to dismiss him.

At first instance, Scott & Co claimed that the change in working conditions was required to bring the company into line with new market practices and to allow them to plan work more cheaply and effectively. Mr Richardson argued that Scott & Co had failed to prove that there were advantages to the new working arrangements and that the real reason for the changes was to save money in overtime payments.

Mr Richardson succeeded in his claim for unfair dismissal and the Employment Tribunal held that it did not appear that the imposition of the shift system was of such discernible advantage that the only reasonable thing to do was to terminate the employee's contract unless he would agree to the new arrangement.

On appeal the EAT overturned this decision and held that:-

A Tribunal should not 'second guess' an employer's business decision; A Tribunal should evaluate whether dismissal was due to the employer's reasonable belief that the contract changes had advantages; and The employer did not need to prove that those advantages objectively exist. This is good news for employers who can rely on the principle that the tribunal must respect their commercial decisions in assessing whether a fair reason for dismissal has been shown. However this must be tempered by another EAT decision in Forshaw and others v Archcraft Limited [2005], where the EAT relied on its own assessment that the clause in question was unreasonable and found that the dismissal was unfair. In Forshaw the EAT said that while the tribunal generally will not re-open the commercial decisions of an employer's management, however, a reason which is genuinely held but is trivial or unworthy or whimsical will mean that the dismissal is unfair.

Comment: Provided that care is taken, changes to employment terms which are supported by sound commercial reasons will be acceptable under the law. If you require further information contact us.

Email: enquiries@rtcoopers.com

© RT COOPERS, 2005. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.

Employment solicitors, employment law, employment lawyers, employment law firm, redundancies, unfair dismissals, breach of contract, workplace disputes, TUPE Transfers, drafting employment contracts, grievance procedures, disciplinary procedures, maternity rights,discrimination, employment Disputes, suspensions, wrongful dismissal,equal pay, media copyright.

RELATED ARTICLES

Job or no Job: The Certainty of Uncertainty
Headline from AP via Yahoo News! January 11, 2005: "Chrysler Expects No Job Cuts in 2005, 2006."

So, Your Made A Mistake
Of course, mistakes are important. Two facts put those you make in perspective. One, everyone who plays the game makes mistakes. Two, that you make mistakes is not nearly as important as what you do about them.

Career Success: Get Ahead of the Crowd
Regardless of where you open your briefcase or palm pilot each day - at a large corporation, a small business or the end of your dining room table ? the key to staying employable the rest of your life is your own creative action. The person who is going to be successful is not going to succeed just because of good work. That is a given. It is expected. Crafting your competitive advantage is what is going to get you ahead in these crazy, changing times. Pat attention to and practice the following three tactics to not only stay in the game but to get ahead of the crowd.

Home Healthcare Careers
One of the fastest growing sectors of the medical industry is that of home health. There are many reasons for this growth, but most important are:

21st Century Career Success
When it comes to modern career development, one thing we can all count on is change. With the advent of technology, telecommuting, and E-commerce, how work is performed is in a state of reinvention. Self-employment and small business development will become more the norm than big business. And career changes will be more frequent due to rapidly changing organizations and industries. Finally, the line between one's personal and professional life will become even more blurred. Since the modern world of work is rapidly changing to keep up with the demands of our fast-paced lives and lifestyles, here are some characteristics of what the new work contract will look like:

How to Change Career Horses in Mid-Stream
You'll get wet but the reward just might be a more fulfilling ride!

How To Find Writing Work
Are you looking for new writing work? It can be a challenge to build a career in any area, but it is often even harder to do so when you are in a smaller town. Sure, there may be a huge market for talented freelancers in your area, but let's face it, it is not New York where you can find countless job vacancies in your field of freelance writing. When you are looking for freelance writing work, it is important to look outside the box as well as trying the tried and true employment options.

Why Do You Want This Job?
Why Do You Want This Job? Is it because any job will do, or is it because this is the job of your dreams? What do you do ? you send your winning resume, you carefully dress for the interview, you prepare to answer all of the questions about why you are the best candidate for the job. All of the literature tells you to do this. But is this the job for you? Most interview articles don't talk about when to walk away and not accept the job.

Job Search Campaign Tip: An Activity Diary
Looking for a job involves a wide range of responsibilities: preparing a resume, looking at ads, contacting employers, calling and visiting friends and acquaintances, follow ups, interviews. While none of us ever plan to be out of work for very long, it can be very useful to immediately start documenting your activities and your feelings to provide a road map of where you have been and where you want to go. It helps to have a central location for recording your daily actions so you don't miss anything important or forget a critical deadline. It is also reassuring to have somewhere to go when you're feeling blue and too lethargic to go anywhere or do anything you consider "productive."

Hey, You Cant Ask Me That! (How to Respond to Inappropriate Job Interview Questions)
I received the following questions from a visitor to my website recently: "How should I respond to inappropriate questions such as: (1) Do you have a stable home life? (2) Tell me about your personal situation. Are these inappropriate questions? It has been so long since I interviewed for a job, your suggestions about the most helpful responses would be appreciated!" Those are, indeed, inappropriate questions that should NOT be asked at an interview. Various federal, state, and local laws regulate the questions a prospective employer can ask you. An employer's questions - on the job application, in the interview, or during the testing process - must be related to the job for which you are applying. That does not mean, however, that you will never be asked inappropriate questions. Some companies have poor HR support, some interviewers are untrained and unaware of inappropriate or illegal questions, and some even ask them knowing they should not. You won't have much chance of getting the job if you respond to such questions by saying, "Hey, that's an inappropriate question. You can't ask me that!" So you have a few options. First, you can answer the question. Even if it's inappropriate to ask, there's nothing that says you can't answer it. If you choose to do so, realize that you are giving information that is not job-related. You could harm your chances by giving the "wrong" answer. Or you could respond with something like, "How would my answer to that question directly relate to my ability to perform in this position?" If you keep your tone non-confrontational, courteous and upbeat, they may realize they've goofed by asking such a question without getting upset at you for pointing out their mistake. Depending on how they respond, you may feel more comfortable answering. The best strategy, I believe, is to figure out and address their TRUE CONCERN. When they ask something like, "Do you have a stable personal life?" they may be trying to protect themselves from a bad situation that they've had to deal with in the past (former employee whose personal problems interfered with his/her ability to do the job). So what they really want to know is, will YOU be a reliable employee who can be counted upon to show up and do your job effectively, regardless of any personal problems you may have. So without directly answering their question, try to address their underlying concern. In this instance you might say, "My career is very important to me. I'm fully committed to performing at my highest level at all times, and don't allow any kind of distractions to interfere with that. I'll deliver the results you're looking for." If you're not sure what their true concern is, ask something like "Could you please rephrase or elaborate on your question? I want to make sure I address your concern." Please realize that many interviewers are untrained and therefore unaware that a question they might ask to break the ice -- such as "Do you have any kids?" -- is inappropriate. Yes, this question may be an attempt to determine if you have child-care issues that could interfere with your job... but it's MORE likely that the interviewer is innocently trying to find something he/she has in common with you. In the end, it's basically a judgment call on your part. If you feel the interviewer has no legitimate reason to ask an inappropriate question, and you do not want to answer it, say "I'm sorry, but I don't see how that has any relevance to my ability to do this job." You might run the risk of losing the job, but if your gut instinct is telling you there's something amiss, you wouldn't want to work for that person anyway. Here's a list of some questions -- the wrong way, and the right way, to obtain legitimate information: Inappropriate: Are you a U.S. citizen?OK: Are you authorized to work in the United States? Inappropriate: How old are you?OK: Are you over the age of 18? Inappropriate: What's your marital status? Do you have children?OK: Would you be able and willing to work overtime as necessary? Inappropriate: How much do you weigh? Do you have any disabilities?OK: Are you able to perform the physical duties required in this job, with or without reasonable accommodations? Inappropriate: Have you ever been arrested? OK: Have you ever been convicted of _____? (The crime should be reasonably related to the performance of the job in question.)

Dynamic Pre-Hiring Practices
The pre-hiring process can be a challenge. Much time and energy can be invested and in the end, wasted, if your approach is not focused, deliberate, and specific. The following approaches have resulted in meeting candidates that not only meet our specifications, but also regularly exceed our expectations!

Shades of Grey
A paperweight sits on my desk, etched in silver the message: Life isn't always black and white. It serves as a reminder there are few absolutes at work (or in life). Yet, it would be easier if there were; if good ideas from bad, trustworthy people from non-trustworthy, and right paths from the wrong ones could easily be discerned. I've learned in twenty years in management that increasing one's perspective increases the grey, as words like always and never become obsolete for describing most situations and most people. But early in my career, I was convinced there were right ways and wrong ways to do things at work. Of course, my way being right and someone else's wrong. Dug-in positions that at the time seemed immensely important strike me now as limited in knowledge, understanding or perspective. Now, I'm as convinced there are often many ways to accomplish the same goal and many right answers to the same problem. Certainly some approaches may be better than others, but whose interpretation defines better? It is a subjective workplace and a matter of judgment if an idea is a good one, a performance rating accurate, or a decision correct. Sometimes that interpretation is based on quarterly profits, employee morale, company goals, personal filters, necessity, or a passionate champion embracing a challenge. But here's the thing. That subjective element often frustrates us. We think there should be a play book we understand or a standard method to judge an outcome so we can agree whether it's good or bad. Yet we have differing vantage points, information and criteria depending on our roles. There may be big picture, long-term, short-term, temporary, personal, best, best of the worst, and a long list of considerations. I learned this concept as I debated my boss over a decision he was about to implement. As a Human Resources Director, I was concerned the decision would impact morale. HR was the filter by which I judged the world at the time. He gently closed the discussion agreeing with my view point, "Yes, it's true employees will be unhappy. But they'll be unhappier if there are layoffs next year. My job is to make sure everyone has a job." Absolute thinking limits perspective, causes mistakes in judgment, misunderstandings, disappoints, conflicts, and frustration in the workplace. Most work issues are not black or white, right or wrong, win or lose. They are varying shades of grey. If you want to be winning at working, you need to adjust your eyes to see more grey and adjust your beliefs to understand, for the most part, people are doing what they believe to be right, for reasons they believe are right. If we could stand behind them and see what they see, we might even come to the same conclusion. (c) 2004 Nan S. Russell. All rights reserved.

Job Search: Age-Proofing Your Resume
Older job hunters fear interviews where their age cannot be concealed and where an initial response of dismay on an interviewer's face, quickly hidden, confirms their anticipation of discrimination. The mature job seeker often prefers the anonymity of mailed resumes, e-mailed inquiries, internet applications, and telephone contacts.

How To Stay Calm in Tryng Times
That's not you? Great! Bad habits are hard to break once the addiction gets hold of us. Been there. Gave up "smokes" long years ago but it took lots of willpower to kick the habit.

Offer Letter Limbo
Recently we concluded the placement of a Senior Sales Representative for a publicly traded company. The role was ripe with potential as the company products were being widely embraced by current and new customers. The recruiting process went smoothly as the candidate progressed through several rounds of face to face interviews with company executives.

What Did You Say?
My table-mates introduced themselves as the reciprocal protocol began. We chatted about what we did, where we did it and what we thought of the conference. Stan joined the table as the chicken was served. He'd been introduced to me earlier and we'd talked briefly during the pre-dinner social. Now he was peppering me with intriguing business questions. This was going to be a lively and interesting discussion, I thought.

Dynamic Interviewing Practices
The pre-hiring process can be a challenge. If you're reading this article, you are finished with the pre-hiring process and are looking for tips that will guide you through the interview.

Tips for Terrific Telephone Interviews
Telephone interviews don't just happen; they are the result of action you have taken. For example, when you are networking and the company representative becomes interested in your skills; when a company representative calls you in response to a résumé you have sent; or when you have previously set up the telephone meeting. Your goal is to achieve a face-to-face meeting at the end of the call.

How to Terminate an Employee and Live to Tell the Tale
1. Employee Backdrop in Australia

What You Should Never Put on Your Resume
Liars Get Caught! What NOT to Put on Your Resume

home | site map | www.1001topwords.com