Advice for members on the law of contracts

The NUJ is regularly asked for advice on employment contracts and the same questions come up time after time. This leaflet is an attempt to provide answers to some of the most common questions and to offer basic advice on what you can do when your employer tries to impose change either without your consent or without consulting you beforehand.

It is not a definitive statement of the law - that would require much more space. Where there is any doubt as to whether your employer can require you to do something against your wishes, seek advice from the union immediately.

Members often rush off to their own solicitor without consulting the union first. This can be an expensive instinct. The NUJ has its own solicitor who can advise members, and our officers have a great deal of knowledge and experience in the field of employment law. Unless your own solicitor is a specialist in the field of employment, it is quite possible that an officer of the NUJ is more knowledgeable than your local solicitor who is probably more used to dealing with divorce and wills.If the appropriate officer is unable to answer your questions, he or she will take the necessary advice and pass it on to you, at no cost to you. If you go to your own solicitor without consulting the NUJ, it is most unlikely that we will pay the bill.

You should also bear in mind that using a solicitor to represent you at an Industrial Tribunal is unwise. Solicitors fees are not recoverable at a Tribunal and you could find yourself paying more to your lawyer, if the case is complicated or lengthy, than the tribunal is prepared to award you in compensation.

THE CONTRACT OF EMPLOYMENT

This is an agreement whereby you agree to do certain work for the employer and, in return, the employer agrees to pay you at a certain rate and perhaps to provide other benefits such as a car allowance or sick pay.

As long as you do what you are contracted to do, the employer must pay you at the agreed rate.

You may be covered by a contract of employment, even if it specifies that you are self employed. It would take too long to explain all the circumstances where this might apply but, if in doubt:

Take advice from the NUJ.

CHANGES TO THE CONTRACT

Just as you cannot unilaterally increase your pay, your employer cannot change the terms which have been agreed with you without your consent unless the contract says he can. Even if the contract allows for a change, for example, a move to a different office, the employer must still act reasonably by consulting you or your representative and by giving you reasonable notice of the change.

It is an increasingly common practice for employers to issue 'new contracts' to staff because of a requirement of European law or some other reason.

If this happens:

Always read the new contract carefully.

We have found that the employer may 'forget' to include certain clauses or slips in a clause which you have not been told about. If this happens and you do not object to the changes promptly you may lose the right to do so later.

• WHAT IF THE EMPLOYER IGNORES MY OBJECTIONS?

  As long as you object promptly, the employer cannot ignore you. Your objections will prevent the changes taking effect until you agree.

  This does not mean that you are free to ignore instructions given to you, even if you believe the employer is not entitled to give you those instructions. To do so may lead to disciplinary action being taken against you or your dismissal.

  We may take your case to a tribunal and prove that the employer acted unreasonably, unfairly or unlawfully but tribunals rarely order reinstatement and, even if they do, it cannot be enforced. If an employer refuses to obey an order for reistatement, the tribunal will simply increase the amount of compensation it awards you.

  If the employer is insistent, it may be best to do as you are told while specifically reserving your legal rights. This means that you can carry on working there but sue your employer for breach of contract.

• WHAT IF I AM THREATENED WITH THE SACK?

  This too is becoming common. If you do not consent to the changes your employer wants, he may lawfully terminate the contract by giving you the notice to which you are entitled. If the dismissal is for the purpose of introducing the change, you will probably then be offered a new contract which incorporates the new terms.

  If you are not offered a new contract, you may then claim unfair dismissal at an industrial tribunal, provided you have been eployed for two years or more.

  If you are offered a new contract, it is highly likely that continuity between your old contract and the new one will be preserved. This is because the employer has terminated only to introduce the new terms and he must be able to show a tribunal that he has done only what is absolutely necessary to effect that change.

  If you accept the new contract and continue working for the same employer you may still take a case to an industrial tribunal for unfair dismissal because you have been dismissed from the old contract.

  It is here that consultation is very important. If the employer cannot show that consultations have taken place and all objections properly considered, if necessary making amendments to the original proposals, the Tribunal may not accept that the employer was justified in dismissing you and award you compensation.

  It is only fair to point out that not many of these cases are won but employers can become lazy and arrogant because of the way the law is stacked in their favour.

Taking competent advice at every stage is vital. We can help to mitigate the worst effects of the proposed changes, to prevent them taking place at all or in the event that we cannot do either, we can help to obtain compensation or damages form your employer.

Remember, if you are upset about changes to your contracts, your colleagues probably are too so talk to them about it. You will always be in a stronger position if you act together. Concerted resistance by all the editorial staff is much more likely to get your employer to listen to you than any number of letters from lawyers.

Never assume there is nothing you can do.

Take advice promptly and follow that advice.

And remember:

Just because NUJ officers give advice for free, it does not mean it is not valuable.