Shift changes. Fair dismissal?
You need to make some alterations to the way an employee works. The primary reason is to save on overtime payments, meaning the employee may lose out. If he refuses to accept the change, would a dismissal be fair?
Legal dismissal reason
There are five potentially fair reasons to dismiss an employee - capability (someone’s just not up to the job); misconduct; redundancy; where continuing to employ that person would be in breach of legislation, e.g. a driver who’s disqualified, and some other substantial reason (SoSR). This last category is something of a catch-all and most commonly comes to the aid of an employer who needs to make organisational changes. A recent case shows how the courts approach it.
Recent case
In the case of Scott and Co v Richardson, Scott (S), employed Richardson (R), as a debt recovery officer (called a Sheriff Officer in Scotland). In April 2003 he and his 34 colleagues were told that due to a change in the business, they’d be required to work a shift system - one week in four they’d work 11.30 to 20.00 (the other three weeks would be as before and total hours would remain the same at 37.5 per week). R objected saying that the new system denied him the chance to earn overtime for evening work. S then dismissed him.
Unfair, says tribunal
At the subsequent hearing, S defended its decision on the basis that the new shift system had been necessary due to legal changes requiring more debt recovery work in the evenings. S argued that R’s refusal to accept this new system amounted to some other substantial reason. The tribunal disagreed and found that S had been unfairly dismissed. Its opinion was that the shift system gave S no “discernible advantage” and that R’s refusal to accept it meant that he’d been unfairly dismissed. S appealed.
No, it isn’t, says EAT
The Employment Appeal Tribunal (EAT) said that the tribunal had got it all wrong - it wasn’t its place to decide on the merits of the new shift system. In fact, all the tribunal had to consider was whether there was a “sound good business reason” for the change. If there was, then the dismissal was potentially fair for SoSR. All the employer has to do to establish an SoSR dismissal is put forward evidence to support a genuinely held belief that the changes are necessary for the good of the business - they don’t actually have to result in an improvement.
Business reorganisation
Overall, this is a good news case for employers. It confirms that tribunals are not permitted to substitute their opinion on whether a sound business reason exists, with yours. All you have to do is produce evidence to show a genuinely held belief that changes are necessary. If it’s to make the business more profitable by reducing the amount of work done at overtime rates then this should make the dismissal of any dissenters fair for SoSR.
Tip. To strengthen your case, consult extensively with staff before changes are implemented. Produce your evidence; it could be figures from your finance people that show how the savings will stack up. If they can see that in the long-term, jobs will be safe, they’re more likely to play ball.
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