1. How do I change staff terms and conditions?

The obvious way to change terms and conditions is through negotiation. Any change should be noted in writing, and will amount, in law, to a "variation" in the contract.

If you cannot obtain consent, then it is crucially important to consult with staff over the need to make the change. If the change is necessary (as distinct from desirable), that is to say it might affect the future of the business then in the absence of consent, you may be forced into terminating contracts of employment, and offering new contracts to commence from the end of the notice period, with continuity of employment preserved.

Staff who choose not to take the new contract may claim that they have been unfairly dismissed, but provided there has been an appropriate consultation, and that there is a good reason for requiring the change, it is likely that the Tribunal will find the dismissal to be fair.

Employers should resist the temptation to impose changes in contracts of employment at short notice. This can lead to employees leaving and successfully claiming unfair constructive dismissal.

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2. What issues do I need to consider before making some of my staff redundant?

You firstly need to ascertain whether there is a genuine redundancy situation for the purposes of the Employment Rights Act 1996. You will then need to ensure that you follow a fair process before dismissing any staff by reason of redundancy. Failure to follow a fair process may lead to a claim of unfair dismissal by those staff who have been employed by you for more than one year. A fair process would include:

• consulting with the potentially redundant staff at all stages of the redundancy process
• considering staff for voluntary redundancy
• identifying and consulting in relation to the relevant selection pool
• consulting in relation to the objective selection criteria to be applied when selecting staff for redundancy and
• considering suitable alternative employment

You will also need to ensure that you comply with the minimum statutory dismissal procedure. If an employee is dismissed without the procedure having been followed, the dismissal will automatically be unfair.

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3. Do I have a right to return to my job part time after being on maternity leave?

There is, at present, no specific legal requirement for an employer to allow an employee to return to work part time after going on maternity leave. After April 6th 2003, employees who meet the qualifying criteria, will be able to make a request for flexible working hours. The employer has a duty to consider such an application seriously, and follow the statutory procedure. If an employer fails to follow the correct procedure, it is possible to apply to an Employment Tribunal to ask for a review of the decision. If it is granted, the employer will be under an obligation to reconsider the Application. Compensation of over £2,000 may also be ordered.

It is also important to be aware that the refusal to allow a woman to return to work part time may amount to indirect sex discrimination (on the basis that the requirement to work full time has a disproportionate effect upon women and it may not be justifiable on the part of the employer). The employer will need to demonstrate that the refusal to allow the employee to return to work part time is objectively justified). Employers should therefore consider the employee's request carefully, and not dismiss it out of hand. (If the request falls under the new flexible working request, the employer must, in any event, comply with the statutory procedure.) Under sex discrimination legislation, the employer will need to show good reasons why the job could not be done part time or on a job share basis. For example, an objective justification might be that the employee has line management responsibilities for individuals where continuity of management is important, or the employee has particular skills or knowledge that cannot be easily replaced, and which are required on a full time basis.

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4. To whom do I owe a duty when giving a reference to an ex-employee, the employee or the new employer?

The short answer is, unfortunately, both. Interestingly, there is no statutory obligation to provide a reference for any employee. However, a refusal to provide a reference during a continuing employment relationship could potentially lead to a claim of discrimination on grounds of sex, race or disability, sexual orientation, religion or belief. Equally, an employee may claim victimisation under the Sex Discrimination Act 1975, the Race Relations Act 1976, the Disability Discrimination Act 1995, the Employment Equality (sexual orientation) Regulations 2003 or the Employment Equality (religion or belief) Regulations 2003, if a former employer refuses to give them a reference in circumstances where they have previously asserted their rights under the Act. An employer should therefore be careful to pursue a consistent policy when giving references to existing or former employees.

An employer has a duty of care to both current or ex-employees and the prospective employer, and could be sued by either if he does not provide an appropriate reference. Employers should therefore always ensure that any references given are true, accurate and fair and do not give a misleading impression. A common dilemma is whether to make reference to disciplinary matters. Failure to mention disciplinary matters could result in a breach of the duty of care owed to the person seeking the reference, A basic rule of thumb is that matters not previously addressed with an employee should never be disclosed. References for former employees should therefore be well researched and avoid unfounded opinions. Finally, any "agreed" reference supplied in relation to a compromise agreement should always be accurate, and be able to withstand up to examination from both the prospective employer and the ex-employee.

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