Terms And Conditions Of Employment. Variation Of Contract. Deductions

From WagesEdmund Jonathan Carver Lent 2001
Employment Law, HRM and TQM.

Seminar Two: Terms and Conditions of Employment. Variation of Contract. Deductions from wages.

Employees in the UK have had a statutory right to written particulars of the terms of
their employment since 1963 (Contracts of Employment Act 1963)
Current UK law on the subject is mainly in the Employment Rights Act 1996 s.1. Almost every employee is entitled to a written statement of the terms of his employment, which must be given within two months of start of the employment (ERA 1996). The statement must include details such as: identity of parties; date when period of continuous employment began; description of work; particulars of renumeration and any terms re hours of work, holidays and holiday pay amongst other things.
It is sufficient for some of the particulars to be in some other document(s) which the
employee has reasonable opportunities of reading in the course of his employment or
which is made reasonably accessible to him in some other way (ERA 1996,). However this only covers terms relating to sick pay; pensions; disciplinary rules; or ?further action? relating to an appeal against a disciplinary decision or an application for redress of a grievance. Individual notification is required of everything else in the contract.
The only people who can enforce a contract are those party to it, in this case the employer and employee. In UK law, whether the terms of a collective agreement are binding as between a particular employer and a particular employee depends on the individual’s contract of employment. In the cases of Anderson v Pringle of Scotland Ltd 1998 IRLR 64, Court of Session; and South West Trains Ltd v Wightman ; ors 1998 TLR 14th January 1998, non-legally binding agreements between employers and trade unions had been incorporated as a legally binding terms within personal employment contracts. In the example given however the personal employment contract did not exist as a separate entity from the collective agreement
Changes in existing terms of employment are usually made in
one of three ways:
(i) by agreement with the employee(s), possibly with a cash sweetener;
(ii) by unilateral variation of contract terms (or of works rules applied by the contracts);
(iii) by giving required notice to terminate existing contracts and offering new contracts.

An employer cannot impose a change of terms without the employee’s consent, changes in terms of employment must be notified to employees within one month although this does not confer on the employer any right to make such changes. It is essential that employees are fully aware of, and accept, any detrimental changes to their terms of employment if the changes are to be legally binding. Acceptance can sometimes be inferred by the employee’s conduct e.g.: continuing to work without objecting to the change.

If an employer unilaterally enforces a variation in the terms of employment, he repudiates the contract of employment and the employee has the option of accepting the breach and resigning then making a claim for constructive dismissal, or carrying on working and seek damages. Even where an employer has written in the employment contract a clause enabling unilateral changes to be made, such changes must be deemed reasonable and an employee may still be able to claim constructive dismissal if the employer makes significant changes. In any case the employer is obliged to update terms and conditions when they withdraw from a contract otherwise the previous contract still holds.

Contracts may contain clauses enabling a degree of flexibility inside the terms of employment, so that even radical changes may still lie within the job description. Such changes may constitute a termination of the old contract if the new terms are sufficiently different, however there is scope for a degree of ambiguity.
?Changes should be discussed with employees in advance. Failure to do so will
normally be unreasonable and be held against the employer in any court or Tribunal
proceedings? www.emplaw.co.uk.

All the above points to the fact that James does not have to work the night shift, if he wishes to bring forward an action there are several channels where he may seek redress, ACAS may be able to help in arbitration and/or conciliation. Failing or instead of this James may choose to take his case to an employment tribunal citing the breach of statute regarding his right to a written statement of contract and the generally ambiguity surrounding his employment. In this situation he will be unable to get legal aid but the PWU may fund his case. In the unlikely scenario that James brings his case before a court it will come before a county court where claims for less than ?25000 are heard. In this against instance legal aid may be available.

There is a degree of uncertainty in Gloria and Frank’s case, depending how their contract defines the terms and duties of their employment it may be that cleaning can come under their job descriptions. Nevertheless the heavy handed manner in which they were treated and the fact that it was only due to inadequate cleaning by the outside contractors that lead to them being asked to clean would seem like reasonable grounds for a legally enforceable complaint.
In both James’ and Frank and Gloria’s cases the HRM seems to have acted in an unreasonable and unnecessary manner, better communication and a more professional approach to the contracts of employment could have prevented the breakdown in relations.
The general rule regarding deductions from wages, Employment Rights Act 1996 is that it is unlawful for an employer to make any deductions from wages paid to any worker employed by him unless either:
(a) it is required or authorised by statute or by a relevant provision of the worker’s
contract; or
(b) the worker has given advance written consent.

In addition to this within the retail trade ?arrangements can be made between employer and employee enabling deductions to be made to recover cash shortages or stock deficiencies’ (ERA 1996).

However such deductions are subject to the following rules:
(i) the maximum deduction must not exceed 1/10th of the gross amount of the wages
payable on the pay day (ERA 1996).

(ii) a deduction in respect of a cash shortage or stock deficiency must be made within
12 months of the employer discovering it (ERA 1996).

In such a cases there is the additional requirement that the employer must give details in writing to the employee on pay day (ERA 1996).

The employer can therefore legally deduct up to 1/10th of Bill’s wages however he must give details in writing before the deduction is or on pay day.

Better handling of all the situations above would obviously be beneficial to all concerned, a increased respect for the employees of the company may have p