An employment contract is an agreement between you and your employer which outlines the rights and responsibilities of both parties. It should include things like the rate of pay, the location of the workplace, and the amount of holiday you are entitled to.
Having agreed to its terms and conditions, the contract can only be changed by the employee or the employer with explicit agreement from both parties (unless there is a ‘variation clause’ outlining the right of the employer to make reasonable changes).
Say your employer wants to reduce your contracted hours. Because this change will impact your pay, you might be hesitant to accept the reduction. If you don’t accept the changes made to your contract, but don’t want to resign, you can choose to work under protest.
What does working under protest mean?
Working under protest means that you, as an employee, continue to work under the changed terms of an employment contract – such as reduced working hours or an alternate location – but notify your employer that you do not accept the changes, allowing discussions to take place to resolve your grievance.
The notification that you do not accept the changes should be communicated in writing (so that you can keep a record of its occurrence), and repeated at regular intervals, such as each payday. If the matter cannot be satisfactorily resolved, and ultimately results in legal action, that regularity minimises the likelihood of your employer claiming that you accepted the changed terms.
Working under protest should be a temporary measure put into place while you take steps to resolve your grievance. As part of your written notification, you should make three things clear:
- That you do not agree to the change;
- That you’re working under protest; and
- That you will consider taking legal action if your concerns are not resolved.
Contractual changes that can cause working under protest
While working under protest might result from a number of complex factors, some of the most common contractual reasons for it arising are:
- Cutting an employee’s basic rate of pay;
- Reducing bonuses;
- Cutting overtime rates of pay;
- Reducing holiday pay;
- Reducing sick pay;
- Reducing pension contributions;
- Reducing or increasing an employee’s hours;
- Changing the times or place that an employee works (such as an office relocation);
- Changing the duties that an employee is expected to perform;
- Reducing fringe benefits; or
- Changing redundancy rights.
Working under protest is an effective way for you to register dissatisfaction with a proposed change to your contract; open discussions to resolve your grievance; and reserve your right to take legal action based on the change, should the need arise.
How might a working under protest situation be resolved through dialogue?
The purpose of dialogue is to reach an agreement that both parties are satisfied with. The first step before escalation to formal proceedings is likely to be an informal discussion, during which you and your employer might try to arrive at an adequate compromise. Perhaps the reduction in working hours might be less significant than originally planned, or your employer might enhance certain benefits to make up for others that are being lost. Engaging in professional mediation services can improve the likelihood of these discussions leading to a resolution.
If those informal discussions prove unsuccessful, the next step might be for you to raise a formal grievance. Your employer will then have to investigate this, and hold a hearing for you to state your case.
Following the hearing, your employer is required to provide a written outcome detailing any further steps to be taken, such as issuing the amended contract for signature. If there is no satisfactory outcome from the discussions, you might consider taking legal action.
How might a working under protest situation be resolved through legal action?
There are several possible avenues for legal action following an unresolved claim of working under protest. You might, for example, be able to make a legal claim for breach of contract and an unlawful deduction of wages (if any proposed alterations affect your pay).
Alternatively, resigning and making an employment tribunal claim of constructive dismissal is a relevant course of action if you feel that the changes have been made in a deliberate attempt to force your resignation.
If you are considering taking legal action against your employer, it’s important that you refer to guidelines published by the Advisory, Conciliation and Arbitration Service (Acas). Acas is a public body set up to help resolve workplace disputes between employers and employees.
You should also consult with employment law specialists, who can provide advice and assistance throughout any legal processes relating to working under protest. For more information about how the team at Loch Employment Law can help, speak to us today.