The ERA ‘96 S1 provides that when an employee begins employment with an employer, the employer shall give to the employee a written statement of particulars of employment. Also S4(c) provides that the Statement shall contain “any terms and conditions relating to hours of work (including any terms and conditions relating to normal working hours”. This is applicable in Georgia’s case because upon taking up the employment she was employed to work 9am-5pm Mondays to Fridays.
A contract of employment is in law an agreement between an employer and an individual employee. Any variation to the contract needs the employees’ agreement. However, an employer and employee can agree, either expressly through a clause or reference in the employee’s contract, or through an implied term, that relevant changes in terms and conditions can be negotiated by a trade union(s) on the employee’s behalf. This may be the case whether or not the employee is a member of the recognized trade union(s). Variations to the contract can be agreed verbally or in writing. It is preferable for any agreed changes to be in writing.1
If an employer imposes a new contract unilaterally the employer will be in breach of contract and the employees may well make legal claims against the company for constructive dismissal if the breach is fundamental and significant.
The management is liable for breach of contract in this case. The new contract was made unilaterally and imposed on Georgia by changing her working hours to 7am-3pm including Saturdays.
The management should have had a meeting with her explaining that her working hours will be changed, only when there is a collective agreements can the management vary her contract and these agreement should be written.
Morgan v Network Europe Group Ltd2 - variation of contract could not be implied and so new term was not effective. Agreement by an employee to an employer's unilateral variation of contract will not be lightly inferred. The fact that she continues working is not by itself enough to automatically mean that she must be treated as having accepted the change. This is applicable in Georgia’s case the fact that she continued working must not be treated as having accepted the change.
For the management to avoid future occurrence the employer can insert in the contract express terms which allow an employer to make changes to employees’ terms and conditions. The flexibility clauses may be quite specific or they may include a general power to allow the employer to change the contract terms.Where an agreement cannot be reached the existing contract can be terminated with proper notice and then offer a new contract with the revised terms.
ERA ’96 S.139 of the act defines Redundancy and E+W+Ss. 86 of the employment act provides that the minimum of 1 week notice should be given if the employee has worked for more than a month, after 2 years 2 weeks up to a maximum of 12 weeks.
The reasons the management took for making the 25 staff redundant does not fall under S139. The management did not issue any notice to the 25 staff that were made redundant which is a statutory requirement. They were only given letters when they turned up for work and could not get through security barrier. Nothing prevents the employer for paying in lieu of notice if it is expressly provided for on the employment contract, staff handbook e.t.c.
S.94 provides that an employee should not be unfairly dismissed by the employer. S. 95 (1) (a) provides that an employee is dismissed by the employer if the contract under which he is employed is terminated by the employer (whether with or without notice). In this case the 25 employees were unfairly dismissed because notice was issued to them.
Employers should consult affected employees regarding the selection criteria. The criteria must be consistently applied and be objective, fair and consistent. Basing any selection on skills or qualification