The following has been provided by the DWP Group Executive Committee:
Management met PCS on Friday 31 July 2009 in Leeds and announced their intention to proceed with the 8am till 8pm business change from 14 December 2009.
Shameful
PCS described this decision as shameful. Of the 868 staff who had been identified as contracted to work outside 8am until 8pm all but 111 had felt able to agree to change. Many felt able to change as they had never wanted to work evenings and were happy to move to days. Others only had to change a matter of minutes with no financial loss.
However, one of the primary reasons given by the 111 staff who feel unable to change their contracts is loss of pay and/or extended working hours allowance. For example, a member contracted to work until 9pm five nights a week could only maintain their pay and extended working hours allowance by working on Saturdays.
For management to go ahead with this change, with the cover of business needs really is shameful when they are prepared for their ‘people’ to lose pay.
Legal Advice
PCS has strong legal advice that an imposed change of contract constitutes a breach of contract. Our advice is summed up as
Change of Contracts
Changes to contract can lawfully be made by:
• Agreement (with individuals)
• Collective bargaining
• Having an express clause in the contract that specifically permits the change (but if not operated reasonably a claim for breach of mutual trust and confidence is likely to succeed).
Unlawful changes to Contracts:
• Unilateral imposition of a change of contract (such as changing an employee’s working hours or working pattern without their agreement). In law this equates to a dismissal under the terms of the old contract, and breach of contract. If the terms of the new contract, and breach of contract are unreasonable, they may also claim constructive unfair dismissal and breach of contract.
Mitigation
If it becomes necessary to make a unilateral change to employee’s contracts, the effect of potential complaints can be mitigated.
• If it can be shown to be a business critical decision
• If the changes can be shown not to have been detrimental to employees
• By ensuring that the changes are not fundamental to the employment relationship and therefore in breach of the implied term of mutual trust and confidence between the employer and employee.
PCS believes that there is a clear detriment and that the decision to force 111 staff in a workplace of 9,500 staff can hardly be described as business critical.
PCS offered to exchange legal opinion with management but not surprisingly, they declined.
What Happens Next
Management informed PCS that a Senior Manager will now examine each case and attempt to reach agreement. They also intend to announce their intention to proceed with the business change from 14 December 2009 by letter.
Those staff unable to agree change will receive six months notice of management’s intention to impose a new contract from 1 March 2010. This letter will be issued on 1 September 2009. They will also be advised of management’s intention to go ahead with the business change from 14 December 2009 and that the new hours will be imposed from this date. Management will continue to pay the ‘old hours’ until 1 March 2010. They will in effect, lock out the 111 staff from 14 December 2009.
PCS View
PCS has advised management that this behaviour is shameful and urged them to think again.
PCS argued that this exercise should be carried out on a ‘no-detriment’ basis ie. no one should lose – even if this was on a marked time basis.
PCS also offered to work with management to try and resolve any problems. PCS has also written to Mark Grimshaw, Managing Director of CSA urging him to think again.
This affects us all
It would be easy to believe that because this is only affecting a relatively small number of staff that it is a minor issue.
However, nothing could be further from the truth. The implications of this decision are huge and it is certainly not just a matter for the 111 staff affected.
If management feel able to rip up their contracts illegally then undoubtedly they will feel able to do the same to the rest of us if or when it suits them.
PCS has asked for member’s meetings to discuss this injustice.
PCS Reps – Grievances
PCS representatives should ensure that PCS Branch Bulletins – DWP/BB/86/09 “Shameful Way to Treat CMEC Staff” is widely distributed to CMEC/CSA staff to ensure all those immediately affected are updated. That bulletin can be found here.
Each and every one of the 111 staff should submit a grievance – this is particularly so where there is a loss of pay and/or extended working hours allowance.
PCS is awaiting agreement for members meetings – we will issue the agreement (or refusal) as soon as we receive it. Either way, CMEC/CSA sites should hold member’s meetings and gather membership feedback. Please feed this info into the Leeds office.
Conclusion
PCS will continue to try to dissuade management from proceeding and will issue further guidance as soon as is possible.
