Making Changes to a Contract of Employment
Republic of Ireland, July 2024
This Article will cover;
Making a Change to a Contract of Employment.
The Employees’ Right of Reply to proposed changes to a Contract of Employment.
Contractual Terms and Conditions vs. Working Custom and Practice.
Avenues of Disagreements to a Change to a Contract of Employment.
Reference Legislation.
1. Making a Change to a Contract of Employment.
Within one (1) month of starting a new position, all employees must receive either a Main Statement of Terms and Conditions of Employment, or a Contract of Employment. This document must include the new starters main terms and conditions of employment, including but not limited to; pay, intervals of pay, working location, and hours of work.
A Contract of Employment may be changed for two primary reasons; due to a change in employment legislation (legally necessitating a change to the contractual terms and conditions of employment), or, by bilateral (mutual) agreement between employer and employee.
In Ireland, unilateral (one-sided) contract changes are not enforceable or permittable under law. Any change to terms and conditions of employment must be by bilateral agreement (in other words, both-party agreement). The employer and employee may both agree to a change to the contract of employment, for example changes to; fundamental job responsibilities or level, job title or function, fundamental renumeration package, core working location, pay intervals, etc.
A Helpful Checklist;
A. The proposed change(s) must be communicated to the employee in writing, at least one (1) month before the proposed change(s) is/are to take effect.
B. The communication of proposed change(s) must include a date by which the employee should respond agreeing or dissenting/disagreeing to the proposed change(s).
C. Any agreed changes must be provided to the employee, in writing, giving 'reasonable notice' before the day on which the agreed change(s) will take effect. 'Reasonable notice' is recommended to be benchmarked at at least one (1) month prior.
D. It is recommended to also include a Review Date, giving the employee and the employer the opportunity to provide feedback on the change(s) to the contract of employment, and for any further change(s), or any amendments to be made (including reversion to the previous terms and conditions of employment, if necessary). It is standard practice to set this Review Date for four to six (4-6) weeks after the agreed change(s) take effect.
2. The Employees’ Right of Reply to proposed changes to a Contract of Employment.
The Employee has a Right of Reply to all proposed change(s) to their Contract of Employment. There are two primary opportunities when an employee may exercise this right;
Firstly, after the first notification, in writing, by the employer of the proposed change(s) to the Contract of Employment. Secondly, after the second notification, confirming the agreed change(s), in writing, but before the change(s) come into effect.
It is recommended that the employee should also have an opportunity to exercise their Right of Reply at the recommended Review Date four to six (4-6) weeks after the agreed change(s) take effect.
Please note, while the phrase 'Right of Reply' is being used here, an employer cannot unilaterally make a change to an employee’s fundamental terms and conditions of employment. Any change(s) should be discussed using open and active communication methods, and must be fully understood and agreed by all signatory parties.
3. Contractual Terms and Conditions vs. Working Custom and Practice.
(and the importance of the difference between the two)
It is important to note that under Irish employment law, there is a difference between Contractual Terms and Conditions of Employment, and Working Custom and Practice. An employer may not change a Contract of Employment (Contractual Terms and Conditions) without bilateral agreement, but an employer may change an employees Working Custom and Practice unilaterally.
What are Contractual Terms and Conditions of Employment?
Contractual terms include; pay details, hours of work, location of work, pay intervals, sick pay entitlements, and pension scheme entitlements. All details that consist of Contractual Terms and Conditions of Employment reside in the employees’ Contract of Employment or Main Statement of Terms and Conditions of Employment.
Other Contractual Terms and Conditions of Employment may be found in a;
Staff/Employee/Company Handbook,
Pension/Healthcare/Benefits Scheme Booklet,
Or Collective Agreement with the employee/employer (if applicable).
It is important to note that not all contractual terms and conditions are written. Implied Terms are terms that have not been written, but have been implied into the contract of employment, either by legal necessity, or by lived experience of the parties to the contract. Implied Terms are terms and conditions that are enforceable because they are (a) necessitated by common law or by legislation in order for the contract of employment to be legal. Or (b) because they have been lived by the parties to the contract of employment. If terms and conditions are provably lived by parties to a contract, they may be deemed enforceable, regardless of not being written. The subject of Implied Terms will be covered in detail under a separate article.
What is Working Custom and Practice?
Examples of Working Custom and Practice include; break times and lengths, rostering and scheduling responsibilities, absence reporting, health and safety procedures, uniform/presentation/attire requirements, etc. Working Custom and Practice may be found in a Staff/Employee/Company Handbook or Code of Conduct. While, in some cases, it can be difficult to delineate between the two, a general guideline is that Working Custom and Practices are those policies and procedures outlined, which are separate to, or not outlined, within the Contract of Employment (or not specified within a Handbook/Code of Conduct as Terms and Conditions of Employment).
Working Custom and Practice may be changed unilaterally, without employee agreement/approval. It is deemed reasonable under Irish Employment legislation for an employer to update work practices or processes in line with business needs, or to increase business process or monetary efficiency and/or efficacy. While Working Custom and Practice may be changed unilaterally, it is still required that employers give 'reasonable notice' to employees of any change(s). 'Reasonable notice' is recommended to be benchmarked at at least one (1) month prior.
4. Avenues of Disagreements to a Change to a Contract of Employment.
Any disagreements to a change or changes to a Contract of Employment should first attempt to be resolved informally. It is recommended to arrange a meeting with the employee to hear their concerns, questions and suggestions around the proposed change(s) and attempt to reach a solution, resolution or compromise.
Where an informal route cannot resolve the concern(s), the grievance procedure as set out in the Employee/Company/Staff Handbook should be followed. Where the organisation does not have a Handbook, the WRC’s code of practice Grievance Procedures should be followed.
Where the Grievance Procedure does not resolve the concern, and a solution, resolution or compromise cannot be reached, or is not practicable for the business, the organisation may then look to end the contractual relationship. The organisation should consider all possible alternatives before considering ending the contractual relationship. The correct route of terminating the employment contract should also be considered. Either party may choose to end the contract of employment by giving notice. Redundancy or severance routes may be more appropriate, depending on the circumstances.
It is important to actively communicate with the employee. If they perceive fair procedures have not been followed, they may choose to make a claim for Unfair Dismissal, or Breach of Contract. If an employee perceives that they have no choice but to leave employment, they may make a claim for Constructive Dismissal. This subject matter will be covered in more detail under separate articles. For these reasons, it is important to have fair procedures in place, and to consistently, actively and openly communicate with the employee, throughout the ongoing processes.
5. Legislation
The Irish legislation covering changes to an employees' contract of employment and terms and conditions of employment are contained within the Terms of Employment (Information) Acts 1973–2014, and the Employment (Miscellaneous Provisions) Act 2018. The corresponding European legislation is contained within the EU (Transparent and Predictable Working Conditions) Regulations 2022.
Disclaimer and Copyright Notice
Please note, this document intended to be an overview process document, for the information and interest of the reader. This is not intended to be an advisory or an in-depth guide document, and does not contain the individual nuances of and within the overviewed material. This document does not constitute legal advice, it is intended for informational purposes only.
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