Help – I’m being told our terms and conditions are being changed. What can I do?
In recent months, our duty service has frequently been asked about the effects of reorganisation and changes to social workers’ contracts. Often this is as the result of collective negotiation with one of the larger trade unions, and our members have sometimes said that it is not right that a union of which they are not members should make decisions on their behalf.
Are social workers bound by collective bargaining by a union of which they are not a member?
Not necessarily. Certainly if your contract expressly states you will be bound by a collective agreement, it applies to you. You may equally be bound by implication within your contract. It is your own contract that has to, by implication or directly, incorporate the terms of a collective agreement. So our advice is to check your contract. If it doesn’t say or suggest that a collective negotiation by their agreed negotiating unions applies to all employees, then it’s a non-negotiated change of contract. If it doesn’t apply to you and you’re told you must sign a new contract or face dismissal, there is an argument this would be an unfair dismissal.
What if my position is affected by restructuring or reorganisation?
If your job is being or has been phased out, this is actually a redundancy situation. Redundancy being defined as:
1. If the employer has ceased, or intends to cease, to carry on that business for the purpose for which the employee was employed;
2. The employer has ceased, or intends to cease, to carry on that business in the place where the employee was employed; or
3. The fact that the requirements of that business for employees to carry out work of a particular kind, or for them to carry out work where they were so employed, have ceased or diminished or are expected to cease or diminish.
So, broadly, if your job won’t exist after a reorganisation, then technically you face redundancy. If you are in this position then you should be offered suitable alternative employment. This is where the change in contract comes in; for example, where during a reorganisation you are told that there are posts into which you will be assimilated or for which you are expected to apply.
So what is suitable alternative employment?
We are sometimes told by members that they are informed by their employers that a grade below or a certain distance away from their current post is regarded as suitable. This is not necessarily the case. The suitability of alternative work must be assessed objectively. So the employee’s own personal problems, which may arise through taking up a new job, are relevant factors. Domestic difficulties, inadequate or inconvenient travel facilities, lack of suitable educational facilities for children, or loss of friends, have all been matters held to constitute reasonable grounds for refusal of an offer. Could you afford your mortgage if you dropped a grade? Would you need to think about moving? Would it prevent you from being able to, for example, get your children to school as you currently do? If any of these are applicable, it must be questioned whether the alternative employment is suitable. Also, it has been held that an employee does not act unreasonably in refusing to accept alternative employment if he feels he cannot achieve a satisfactory standard in the new post. So if it’s a completely different role, you must think about whether you could do it satisfactorily. You also have the right to a trial period of four weeks or such longer period as may be agreed between the parties for the purpose of retraining. If it is to be a longer retraining period, the new agreement must be made before the employee starts work under the new contract. It must be in writing, specifying the length of the trial period and the terms and conditions which will apply after the trial period.
What if you’re not offered suitable alternative employment?
You should, provided your refusal is reasonable, be entitled to be made redundant. However, you will only normally be entitled to a redundancy payment if you have worked for your employers for two years or more.