Case Study:
Open all hours?

Can employers automatically change a worker's hours in line with the new trading times?

Bill runs a small shop. It currently opens between 8.30 a.m. and 4.30 p.m. He has noticed that business is slow early in the mornings but busier towards late afternoon. Bill therefore proposes to change the opening hours to 9.00 a.m. to 5.00 p.m. One employee, whose contract clearly states the original hours is unwilling to change to work the new proposed hours. What can Bill do? Can he force the employee to alter her hours and if so, how? Would it make any difference if the reason for refusal was due to the fact that the employee could not alter her childcare arrangements?

Answer:

Bill's first port of call is to carefully check the original contractual terms. Do his contracts give him flexibility to amend the working hours. On the basis that Bill does not have this flexibility, he has no inherent right to unilaterally alter existing terms and conditions. He should therefore always seek to consult and negotiate any changes with the employees affected. If the employee will agree to the change, then this should be confirmed in writing.

If, however, negotiation proves futile, Bill's only option is to terminate the existing contract on notice and seek to re-engage the employee on a contract stating the new hours of work. This will, of course, give the employee the option of claiming unfair dismissal. The law recognises that businesses may on occasion need to amend terms and conditions and such a dismissal is potentially fair. Provided that Bill can show a good sound business reason for the change and have acted reasonably in imposing the change, any dismissal will be potentially fair.

In this case, the tribunal may consider the reasons both for Bill seeking to impose the change and the reasons for the employee refusing to accept the change. Whilst the fact that the employee has childcare problems will not of itself block any changes, Bill would be expected to have discussed this issue with the employee and considered ways in which any changes would minimise the impact on him or her.