Employers need to learn the art of consulting employees before changing terms and conditions of employment

The Covid-19 brought many shocking circumstances to the world. Who would have known that we would move around our cities with masks over our mouths and noses way beyond the pandemic being removed from the emergency list? We have become so accustomed to masks that they have become a part of our daily lives, without them we feel naked and vulnerable.

As far as the world of work is concerned, we experienced shock after shock. Due to national or even worldwide shutdowns, economic activities came to a standstill, a totally new phenomenon to an employee who had only ever seen their workplace closed during weekends and public holidays. This time their workplaces were closed for weeks on end, with no certainty of whether they would ever re-open and if they did under which circumstances. Labour practitioners watched in shock when employers took it upon themselves to vary employment contracts of their employees and simply passed on final decisions to shocked and desperate employees.

So what do we mean by variation of the employment contract?

What is the expected procedure for varying and employment contact?

Can an employee rely on an emergency to vary an employment contract unilaterally?

To discuss this issue we must first start by explaining what we mean by terms of the contract. Terms are those issues upon which the employment contract is set, issues that both parties agree and sign for. They are commonly expressly printed and presented in a document called an employment contract. They are easy to determine as they are the main issues which the parties agree on and live by. They may be expressed or implied. An implied term is one that is part of the contract automatically. They do not need to be spelt out as it is assumed that they are common because, they go without saying. For example, an employer does not have to tell an employee not to come to work drunk or that they should bathe and be neatly dressed for work. It is assumed that any reasonable person of sound mind ought to know this. To respect the employer, to avoid competition with the employer, to put one’s time in the hands of the employer during working hours are other examples of these implied duties.

However, due to developments in the Law and some court decisions, most of these implied duties are now being expressly presented in the employment contracts. This is done to avoid any conflicts or misunderstandings where an employee may say they did not know that a certain behavior or certain acts are prohibited or are expected by the employer. Employment contracts of modern dates are now very specific and spell out even the minutest of details to avoid litigation. So, these terms and conditions of the employment contract are binding to both the employer and employee and cannot be varied by one party without consulting the other. Thus, a clause that purports to give an employer a right to vary any term of the contract unilaterally would be regarded as null and void.

How does this requirement for consultation work?

Do both parties have to agree before such variation takes place?

What then is the purpose of consultation?

Is consultation still required where circumstances do not allow for it to happen but the decision has to be taken as the decision has to be taken as it was the case during the covid-19 pandemic lockdowns?

In doing so, partners are trying to find a middle ground consensus or even a full agreement if their luck serves them. According to the Labour court decisions, consultations need not be a farce, employers should not engage in them just for show, there must be a genuine intention to talk matters through with the employee, present the side of the employer, why it is important to change the said term, how it will affect the employee and what interventions if any that the employer will put in place to mitigate the adverse effect of variation. The employee must also be afforded a channel to present their side, how the variation will affect them and any suggestions if any to avoid the variation. If there aren’t any suggestions the two parties can attempt to find an alternative decision. It is only if there are no solutions that the employer would have a right to implement his decision and vary the terms. This does not mean the employee would be happy with the decision but because the employer has what is commonly referred to as managerial prerogative, he can go ahead and make a decision even is such a case where consultations have not brought about consensus or full agreement.

Where circumstances do not allow, the employer must find alternatives of consulting the employees e.g. via social media platforms- as long as consultations have been made that is all that is required, not necessarily physical contact consultations.

Failure to undertake these consultations or putting up a show or a façade in the name of consultation will most likely land the employer in court, which may even instruct the employer to reserve the decision he has already taken and ensure that consultations are done. Many employers do not like this whole “consulting thing”- they say it takes too long and wastes valuable resources, but as they say, cheap can easily become expensive.

We are eager to hear from you on this and other issues.  Please contact us on +266 52512345 or email us on info@tharollo.org.ls. Visit our pages, Facebook and LinkedIn: Tharollo consultancy. For courses and other news, visit our website: www.tharolloconsultancy.com