Our HR advisor tackles some frequently asked questions around employee consultations - when are they useful, what can they achieve, and how should they be carried out?

Consultations are used for several different procedures, most notably to change terms and conditions of contracts, redundancies and TUPE acquisitions.

Consulting with employees is necessary for several processes when employing people:

• Consultation for good practice: this is done by employers when they don’t have to, but it could help with the integration of a new policy or new training, for example. Consultation is a good way to get feedback from employees.
• Consultation when it is legally required: this could be when an employer wants to change the terms and conditions of contracts or in redundancy situations, for example.
• Collective consultation: this is when the law requires employers to consult with groups of employees or trade unions—for example, a redundancy situation involving more than 20 people. The process is more specific for scenarios that include more than 20 employees.

Consulting to Change a Contract

A contract of employment is an agreement between an employer and an employee regarding the terms and conditions of the working relationship. It is not lawful for an employer to unilaterally decide to change a contract of employment, even if this is frustrating for the employer! Some of the most common reasons that employers may want to change contracts could be to change working hours, change sickness provisions or even change holiday allowances.

To be able to make changes, the contract needs to contain a specific clause that allows those changes to be made, known as a flexibility clause. It is not usually enough to rely on a general clause that states something such as “The practice reserves the right to make a change to these terms and conditions where necessary by providing notice”. Better contracts will contain a specific clause, such as one relating to changing working hours, but not all contracts contain these.

If the contracts don’t contain a specific clause that can be relied on, then you need to seek the agreement of the employees to be able to make the changes. You seek that agreement through a consultation. Good employers will still consult employees even if they have a strong flexibility clause that covers the situation.

How Should a Practice Consult?

First of all, employees are usually very willing to accept improved terms and conditions (such as a pay rise!) but of course (and rightfully so) against accepting lesser terms and conditions. This can lead to a severe impact on team engagement and workplace morale, so changing contracts should always be very well considered and usually, a last resort.

But if you do find your practice in this position:

1. Consider how many people this is likely to impact. Most practices don’t recognise trade unions, but if you’re a large practice looking to make a big change, you may need to organise the election of employee representative / involve unions. If the change impacts your clinicians, they will likely want to involve their representatives. This guidance is going to focus on smaller sites and consultations that do not require trade union representation. If you’re an FPM Member and need advice on collective consultation/ how to involve trade unions, please contact the HR helpline.
2. Once you have identified the group of people who are going to be impacted, such as receptionists about a change to their contracted hours of work, then the first thing you need to do is to make them aware that you want to propose this change and fully explain why. You should explain any other options you have considered, why they might not be suitable and the time frame of the proposed changes. You must make it clear you want to work together to sort the problem out and that employees are encouraged to have their say. You should do this in the best way suitable. For the above example, you might consider a reception team meeting and follow it up with a letter.
3. Once you have had the initial meeting, you should start the consultation. This could be an individual meeting with each affected person to discuss their concerns and ideas. The employee should be taken seriously, have their needs understood and their questions and concerns should be addressed.
4. You must remain open minded. If an employee offers a better solution, don’t be afraid to go with it. Keep the consultation period going for as long as is reasonable. You should give it as much time as you possibly can. Try to encourage employees to discuss alternatives that they would find acceptable. Can you negotiate the problem to reach a joint consensus? This stage may require more team and individual meetings.
5. If changes are agreed, then these need to be put in writing and monitored.

If changes are not agreed, you need to really think about the possible implications of moving forwards without the agreement of your employees. This could lead to legal claims, even worse staff morale and reputational damage for the practice.

Have you really exhausted all your options? Could you give a little on some of the changes? Could you “buy out” the changes by offering better terms elsewhere in the contract?

If you decide to move ahead with the change, there are two options:

1. Impose the change. Make the change without the agreement of the employee and breach the contract. This runs the risk of employees resigning and claiming constructive dismissal.
2. “Fire and rehire”. You may have heard about this in the news recently, but the employer serves the employee their notice to bring their contract to an end. They are then reengaged on the new terms and conditions. This also runs the risk of legal claims, as the employee could refuse to sign the new contract, however it is considered slightly less risky than simply imposing the change.

If you are an FPM Member and have any questions about contracts, you can contact our HR Helpline on hrhelp@firstpracticemanagement.co.uk