Significant Change to Job Description

If managed correctly, changing a worker’s job description can help your organisation adapt its operations while improving morale and increasing the flexibility of your workforce.

Employers are allowed to change workers’ job roles, provided there are contractual terms in the employment contract allowing them to do so, such as a flexibility clause, and the employee agrees with the change. In larger organisations, it may also be necessary to consult with union representatives. If the employee does not agree to the changes, or if the employer imposes them without proper consultation, the employer risks disputes and legal complaints.

In this guide for employers, we explain the process to follow to change a job description, and we also consider what you can do if an employee refuses to agree to the changes.

 

Job description or contractual term?

Job descriptions and contracts of employment are often confused. A job description does not set out the terms of employment (pay, hours, annual leave and so on) but does describe what the employer expects the person in the post actually to do and achieve.

Having this set out in writing will make a host of HR management tasks much simpler. These include:

• Introducing a new post: everyone knows what the post is for and how it will impact on their own role.
• Newly promoted co-workers: both the promoted staff member and their colleagues understand their new role and responsibilities, making the process fair, transparent and more likely to succeed.

Job descriptions should be updated at least annually as part of the appraisal process, and:

• If the team’s structure changes
• When a co-worker’s job description is changed
• When a new post is introduced
• When a new service is introduced
• When a team member takes on a new task
• When posts are substantially changed or merged

The absence of up-to-date job descriptions can have a significant impact on the time an employer spends on managing staff issues. Here are some common situations you could avoid:

• Staff who say ‘nobody ever told me I was meant to do that’.
• Staff who say ‘I am unclear what is expected of me’.
• New staff who say ‘this job is not what I thought it would be’ and leave.
• Newly-promoted staff who are not up to the task.
• Resentful and discontented co-workers who feel they should have been given an internal post instead of the successful candidate.
• Poor performance you cannot effectively manage.

You want to have staff who are willing to cross-cover, learn new skills take on new tasks and generally work towards their own and the organisation’s goals. Maintain informal reviews and dialogue during the year with your staff. Talk about what’s going well, problems, barriers, solutions and changes as an informal opportunity for review.

This helps with performance reviews and keeps the job description dynamic. It also helps avoid ‘that’s not in my job description!’ Additionally, this kind of discussion helps staff understand the difference between the terms in a contract and a job description.

If a change in job description is required, the employer must ensure they follow a lawful procedure.

 

Making changes to job descriptions & contract terms

Employers are permitted to make changes to a job description or the activities involved in a role, but they must have a good business reason to do so. It is best practice for employers to include within their employment contracts specific provisions allowing changes to be made, such as variation or flexibility clauses and mobility clauses.

If you have added a flexibility or variation clause, your next steps should be made easier. Generally, these clauses will detail what can be changed, any notice period for a change and in some cases the process that needs to be followed for any role changes.

Even where the contract term allows for the specific change to happen without employee approval, it is advisable to consult before effecting any change, not least as good employee relations practice. When making contractual changes, employers should consult with their workforce in a meaningful way with a view to reaching agreement over the new terms. This consultation should genuinely seek to gain feedback and identify if the proposed changes may have an unfair impact on people.

Meaningful consultation will include explaining how the new terms differ from the current ones, meeting with employees on an individual basis, answering questions and giving people time to make a decision.

Blindsiding workers with changes is unlikely to be well received and could damage morale and result in formal complaints, or even legal claims, such as if the employee alleges a breach of the implied duty of trust and confidence.

If no such contract provision exists, you may still be able to make the change if you have first consulted and gained the affected employee’s agreement.

If you find there is no clause covering changes to job roles, you can still move forward, but you should look to ensure you both agree to any job role changes before they go ahead. The last thing you’ll want is a formal complaint, staff working under protest or legal claims for breaking the conditions of their employment contract.

 

Making changes to the contract

How you look to engage with staff and obtain their agreement to changes will be key. It’s in your best interest to talk to your staff first, rather than simply dictate the changes that you feel must happen.

Look to explain the reasons behind making the changes to their role. If your staff understand the business reasons for the changes you are proposing, they are more likely to accept them and work with you to ensure the role changes are implemented correctly. At this time, listen to any concerns they may raise. By showing that you are willing to listen and help resolve any concerns, you are far more likely to move forward smoothly.

Consulting with staff on minor changes to contractual terms can be done in various ways. A 30 day consultation period is recommended, during which time people should be permitted to ask any questions to enable them to fully consider the proposal.

Recommended process

1. Meet with the individuals (independently or as a group) and explain why the change is being proposed and what the proposal actually is. A face-to-face discussion with their manager will allay many fears and allow easier answering of questions at an early stage in the process.
2. If you have a written document (advised) that explains the proposals and the reason(s) for them, share this with staff. If terms will vary in a Contract of Employment or a policy or procedure the document can be sent to all staff highlighting that changes have been made to the document. The purpose of giving the document to staff is to gain feedback and to identify if the changes may have an unfair impact on staff. Don’t forget those who were not at the meeting, or who are on leave.
3. When sending the document out it is advisable to send with it a form to explain to staff how they can feedback any comments they may have on the document. Always provide a deadline date so that staff are aware of how long they have to respond.
4. You should hold further consultation meetings with staff and must offer at least one meeting on an individual basis. This allows for a face to face approach in informing the staff of the changes, considering how it will impact on them and obtain feedback and suggestions from them. It also
   provides management with a ‘feel’ on how people are reacting to the changes in terms and conditions.
5. Give people time to think. Some of them will be happy to accept the new contract straight away. Others will want time to think (and take advice). Be available to answer queries during the consultation phase – let people speak to you on their own, or with a friend or colleague if they
   prefer. Answer all queries and questions. Putting these in writing and circulating to everyone (anonymously) is advisable.
6. Once the feedback has been obtained and the deadline has passed consider the views that have been put forward. Often staff highlight areas/issues that management haven’t considered and that are for the best of the business. If this is the case you may want to amend the proposal to reflect this.
7. When you have considered all the feedback and made a decision on whether to proceed with the change, you must confirm this in writing to all affected staff. Inform them that feedback was considered and what the consultation process resulted in and that they are now required to sign up to the change (if it changes their terms and conditions of employment). Again, provide a deadline to respond with their agreement

 

What happens after the consultation period is over?

All comments and feedback should be considered and any amendments made if issues that had not already considered are raised. Give feedback on what changes (if any) were made as a result of the consultation.

If people are not prepared to agree to the change then the employer will need to consider next steps. The options here are to leave people on their existing contracts, to modify the contract (and seek feedback on the new proposal) and, if there is a clear and justified business reason for the change, to dismiss an employee and offer the right to re-engagement. This route requires a strict process and carries the risk of unfair dismissal claims to an employment tribunal and expert advice is strongly recommended.

 

If the changes are agreed

Changes can be agreed verbally or in writing, although the latter is recommended to prevent any misunderstandings and clearly state when changes should occur.

For significant changes you will also need to consider if updated employment terms & conditions are required. You should look to notify them in writing within a month of the change taking effect if this is the case.

Take time to plan for the changes to be implemented. You might want to consider impacts to other staff in the same team, any cross training requirements & when this training will work best for your business.

Any job descriptions or procedure documents may need to be updated and don’t forget this role change may also mean added responsibility or complexity in their role – look at ways to incentivise them for owning these changes.

 

If the changes are not agreed

In short, an employee may refuse to accept a change or variation in their contract’s terms and conditions if the employer has made the change without their agreement. If the employee does refuse to accept the changes to their contract and carries on working for you, but you make the changes anyway, this is known as working ‘under protest’.

If an employee objects to your proposed changes in their terms and conditions, your options would typically be:

Trial period

The employee could also ask for a trial period, so they can work under their new terms and decide whether or not they are prepared to accept them. If an employee agrees to varying the terms during a trial period, it’s important to remember that this is not the same thing as permanently accepting the terms. It is up to you as an employer to decide whether a trial period would be reasonable and/or whether it is something you can agree to.

 

Press on with the changes regardless

This can result in a constructive dismissal claim, where the employee states they had no choice but to resign because of the changes made. Therefore you would need a very strong business case for the particular change to defend such a claim. If the employee carries on working but objects to the change, they could also bring a breach of contract claim for their losses resulting from the change, however long they have been employed.

 

Dismiss the employee and offer to reengage them on the new terms

This is another situation where you would want to have a very strong business case for the initial dismissal, as once again you could be exposing yourself to the risk of an unfair dismissal claim.

 

Accept the employee’s refusal and not make changes to their contract

This is an option, but it’s not necessarily an ideal solution as you risk having different employees on different terms and not achieving your desired outcome.

 

Need assistance?

DavidsonMorris’ employment lawyers provide specialist guidance to employers on all aspects of workforce management, including how to change job descriptions and contractual terms lawfully. For expert advice on how to make changes while protecting your interests, contact us.

 

Changing job description FAQs

Can an employer change your job description?

Your job description forms part of a legally binding contract between you and your employer, and should not be changed drastically without your consent.

What happens if my job description changes?

As long as there is no significant increase in duties and requirements are reasonable and legal, an employer can make changes to your job description. Your employer should discuss any changes with you first.

Do I need a new contract if my job description changes?

Employees do not have to sign a new contract for changes to take effect. However, you should always put any agreed contract changes in writing, for example in a letter or email. This helps to make sure everyone is clear about what has been agreed so there is less chance of misunderstandings or disagreements.

Last updated: 3 October 2022