The question
My husband works for the NHS and has been told that, as from the middle of next month, he has to work one evening a week on top of his daytime duties (he is being paid for the extra hours).
Apart from the fact that this situation is creating all sorts of headaches for us in practical terms, I wondered if it was legal? Surely a change to terms and conditions needs to be discussed and agreed? He’s not in a position to refuse, but can he request a review or limits?
He doesn’t want to create a problem for the department, but I’m concerned that if he doesn’t challenge this situation now, other changes will be imposed in the future. What is his legal position here?
The legal verdict
Esther Smith, a partner at Thomas Eggar
You are right that if your husband’s current terms and conditions of employment are being varied by his employer that he should be consulted about the proposed changes and have an opportunity to comment and respond before any changes are implemented.
If an employer fundamentally changes the terms and conditions of its employees, they may decide to resign and pursue a claim of constructive dismissal. But it does not sound as if your husband is considering this route (assuming he has undertaken a long enough length of service in order to be protected against unfair dismissal).
What he can do if he is not happy with the situation is to exercise his right to raise a grievance and see whether he can persuade his employer to reconsider the implementation of this change of terms.
Esther Smith is a partner in Thomas Eggar‘s Employment Law Unit.
Adam Partington, a solicitor at Speechly Bircham
I am assuming that your husband’s contract of employment does not give effect to the results of any collective bargaining process, through which the NHS has agreed to an increase in his working time with a trade union (or other representative body). If this is the case, other issues would need to be considered.
Whether or not the imposition of the change is lawful and, therefore, needs to be discussed and agreed, will depend partly on the terms contained in his employment contract.
It will be necessary to analyse whether there are any terms that enable the NHS to require your husband to work the extra evening on top of his existing daytime duties.
But even if there is an express clause that permits the increase in hours, your husband should have been given reasonable notice of the change. What constitutes ‘reasonable’ will depend on the circumstances, however.
In general terms, your husband’s employer should not act in such a way as to damage the relationship of trust and confidence that exists between them. Imposing changes without any consultation would be likely to breach this obligation.
Assuming there has been no prior consultation, if there is no clause in his employment contract to permit the proposed increase in hours, it would appear that the NHS has unilaterally imposed the change.
Request a trial period
Unless there has been a custom and practice of the organisation to increase hours in this way without challenge from employees, the imposition could amount to a breach of your husband’s employment contract.
If he does not challenge this change now and carries on working, he could be deemed to have accepted the change after a reasonable amount of time has passed. Therefore, if he does not want to accept it, he should challenge it now.
You have stated that your husband does not want to create a problem for the department and is not in a position to refuse its proposals, but that the situation is causing problems from a practical perspective.
With this in mind, one possible solution would be to suggest that he work under the proposed terms on a trial basis or agree to some time off in lieu of the additional hours, so that the change can be more easily accommodated.
If the practical problems involved cannot be overcome during the trial period, your husband could request a review or suggest that a limit be introduced to the additional hours before the trial period expires.
If this suggestion is rejected, he should make it clear that, although he will continue to work, he is doing so under protest and is not accepting the change to his terms and conditions. This activity should preserve his rights, but he still needs to act and should not delay unreasonably.
Exploring the angles
Your husband should also check whether he has validly opted out of the limit on working time as set out in the Working Time Regulations. If not, and the additional hours take him over the limit of an average working week of 48 hours, he can probably refuse to work the extra.
He should take advice in order to explore the various angles here, however, as it can be a complicated area to navigate.
A drastic option, and one that I would certainly not advise him to take without seeking further specific legal advice, is to resign in response to the imposition of the overtime and to claim constructive (unfair) dismissal.
This is a high risk strategy and would obviously not be consistent with your husband’s desire to avoid creating problems for the department.
Finally, if this is a contractual change and your husband’s employer is determined to push it through, it can dismiss and re-engage him under a new contract, which lays out his new hours.
This is a tactic that employers have to manage carefully (there are, for example, strict consultation obligations) in order to avoid a claim of unfair dismissal, or other related claims.
I mention it here as it may be something that his employer tries to do in the event that your husband refuses to accept the changes to his terms and conditions, in which case he should take advice about the options that may be available to him.
Adam Partington is a solicitor at Speechly Bircham LLP.
