The law when a collective agreement (between a union and your employer) changes your contract
A collective agreement is an agreement or arrangement made by or on behalf of one or more trade unions and one or more employers. Collective bargaining means negotiations relating to or connected with one or more of the matters addressed in a collective agreement. In a collective agreement, an employer can (among other things) agree with the union terms and conditions of employment in relation to employees who are covered by the agreement.
This is a complicated area of the law, and this article covers the law specific to when a collective agreement can or cannot change the terms of your contract. If you need detailed advice on this or another area of trade union law, for instance, whether a union can represent you, we recommend that you contact ACAS.
When can a collective agreement or collective bargaining change your contract?
Trade unions can agree contract changes for employees when:
- the terms of the collective agreement are expressly referred to and incorporated in the employee’s contract i.e. it is written in the employee’s contract that the trade union can agree changes (express incorporation); or
- the terms of the collective agreement are not expressly referred to but it is possible to imply terms into the contract because of previous conduct or “custom and practice” i.e. the employer normally agrees contract changes with the trade union (implied incorporation)
If this is done correctly, the changes agreed between the union and the employer are automatically binding and the employee will need to follow the new conditions whether or not they agree to the change. By contrast, an employee can can object to a change of contract proposed by the employer that has not been agreed to in a binding collective agreement.
My contract doesn’t refer to a collective agreement. Is the change still binding?
It does not necessarily need to be expressly written into your contract for your union to be able to negotiate contract changes on your behalf. Trade unions can agree changes to contractual terms for employees when it is an `implied term’ of the contract that your employer normally agrees changes to contractual terms with a trade union.
Implied terms may be those where an intention to include the term is demonstrated by the conduct of the parties or those that are adopted through `custom and practice’ in a particular trade or industry. Things to think about in this context are – does your employer normally agree to changes to contractual terms (e.g. pay increases) with your union? Have they agreed to changes to your contractual terms on your behalf in the past?
This is a complicated area of law, and if you want to challenge a contract change on this basis, we recommend that you seek specialist advice. As a starting point, you could speak to ACAS.
I am not a member of the union. Can they still change my contract?
Yes. You do not have to be a member of a trade union, for the union to agree changes for you, as long as the collective agreement says that the trade union can agree to the change on your behalf (as an “affected employee”) and this is incorporated into your contract (either expressly written in or implied).
When is a change by collective agreement unlawful?
Just because your union has agreed to the change under or in a collective agreement does not mean that the change is lawful. There are case law examples where changes have been introduced by employers with union backing (or where the union has pushed for the change), and the change has later been found to be unlawful or discriminatory.
One of the most common situations where a change introduced by collective agreement is unlawful is if the collective agreement is not properly incorporated into your contract, either expressly in writing or as an implied term. This is a complicated area of law, and if you want to challenge a contract change on this basis, we recommend that you seek specialist advice. As a starting point, you could speak to ACAS.
Changes agreed through collective agreement are also subject to the Equality Act 2010. This means that the change must not be discriminatory on the basis of one of the protected characteristics or otherwise lead to any conduct that is prohibited under the Equality Act 2010. Any attempt at making such a change by collective agreement would be void. If the change disadvantages an individual or a group of people with a shared protected characteristic and there is no legitimate business justification for it, then the change in question may be indirectly discriminatory.
Some of the most common discrimination issues that come up for working parents are described below.
Indirect sex discrimination
If you are a woman and the change has an adverse impact on you because of childcare responsibilities, you may have a claim for indirect sex discrimination. This is because women still tend to bear the primary responsibility of childcare.
After a case in which Working Families intervened in, the courts recognise this dynamic, and it is called the ‘childcare disparity‘. For instance, it has been successfully argued that, because women tend to have more childcare responsibilities than men, insisting that women work long or inflexible hours can be indirect sex discrimination.
In law, indirect sex discrimination occurs when:
- Your employer requires something of, or imposes a working practice on male and female employees, for example full-time working or shift working, which puts women at a particular disadvantage compared to men (e.g. because of they bear the main burden of caring responsibilities).
- You suffer a disadvantage as a result of not being able to meet the requirement or practice. This may be the difficulty of combining the required work hours with your caring responsibilities.
- The requirement or practice cannot be justified by your employer as genuinely necessary for the business. Assessing this means the tribunal will examine how badly you are disadvantaged by the requirement.
While men cannot bring an indirect sex discrimination claim arising from inflexible working practices (because generally it is women who experience the disadvantage due to bearing the main burden of childcare responsibilities), a man who is the primary carer for his children could bring a “same disadvantage” indirect discrimination claim by demonstrating the impact of the practice on women, that he is at the same disadvantage, and that the practice cannot be justified as genuinely necessary for the business.
What should you do if a collective agreement changes your contract?
If your contract is changed by a collective agreement, and you do not agree with the change, you can consider taking the following steps.
Talk to your employer and the union. Discuss the change with your employer and the union while the change is still being consulted on. Explain how it will affect you, suggest other options you could look at and what could happen if you cannot reach an agreement.
In broad terms, the role of a trade union is to work with the employer to agree changes which are in the employees’ interests. If you feel that a change imposed under the terms of a collective agreement does not work in your interests (for example, because the newly imposed change of hours doesn’t accommodate your childcare responsibilities):
- explain that you oppose the change of hours; and
- explain why (for example, detail the effect that the change would have on your childcare arrangements).
This might trigger the employer and/or the union to reconsider the change, especially if they did not know the change might be problematic for you (and possibly other employees).
It is always best to try to resolve things with your employer and the union first, before starting formal processes. It could be that the employer is willing to agree to maintain the existing working arrangement with you, to help to accommodate your childcare responsibilities.
Work under protest
If you are prepared to continue to work but disagree with the change, you should tell your employer and confirm your position in writing stating that you are working `under protest’ until the problem is resolved. This shows that you have not agreed but you are prepared to try and work things out with your employer.
You should object in writing without delay as soon as you know about the change. If you carry on working as normal without telling your employer you do not agree, it may be taken as evidence that you have agreed to the change. There may be some allowance where you try the new working arrangements and then protest once you realise the impact will be so adverse that you cannot accept it.
Your letter should state that you are working under protest and your objection to the change and the reason for it. This template Letter of Protest may help you. You may then continue to negotiate with your employer and the union to seek to resolve the issue.
Raise a grievance
If the discussions with your employer do not resolve the issue, or you think your employer has treated you very unfairly and the relationship is breaking down, you can consider raising a grievance.
Raising a grievance is important if you think you might later raise a claim in the Employment Tribunal because failure to follow internal resolution methods can impact on your claim.
It is often advisable to try and resolve things amicably where possible, as formal processes can damage your relationship with your employer. For legal insight into grievances and tips on how to engage with your employer before it reaches this point, see our article on how grievances do more harm than good.
Make a claim in the Employment Tribunal
If you cannot come to an agreement, if your employer dismisses you or you feel forced to resign, you can consider a claim against your employer in the Employment Tribunal.
Note: These cases are very complex, so it is very important that you seek specialist legal advice and support, starting with ACAS.
This advice applies in England, Wales and Scotland. If you live in another part of the UK, the law may differ. Please call our helpline for more details. If you are in Northern Ireland you can visit the Labour Relations Agency or call their helpline Workplace Information Service on 03300 555 300.
If you have further questions and would like to contact our advice team please use our advice contact form below or call us.
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The information on the law contained on this site is provided free of charge and does not, and is not intended to, amount to legal advice to any person on a specific case or matter. If you are not a solicitor, you are advised to obtain specific legal advice about your case or matter and not to rely solely on this information. Law and guidance is changing regularly in this area.
We cannot provide advice on employment rights in Northern Ireland as the law is different. You can visit the Labour Relations Agency or call their helpline Workplace Information Service on 03300 555 300.