The question of what is a “work practice” and what is a contractual term of the employment contract is an important one, for both employees and employers alike.
Because the employer can change a work practice unilaterally. For example changing a break from 10 am to 11 am.
But a contractual entitlement or term cannot be changed without the employee’s consent.
Unilaterally changing the employment contract can lead to a claim for constructive dismissal or breach of contract.
In Irish law what is a “work practice” and what is a term of the contract is unclear. Clearly it is impossible to provide for every possible issue that might arise in the employment and disputes regularly arise as to what is a work practice and what is not.
And this creates serious problems for employers. Because while in some instances it is clear what is a work practice and what is not, in many situations the change falls into a “grey” area. This can lead to all sorts of problems for employers and employees.
Irish Courts have addressed the issue down through the years.
For example in in Kenny v An Post [1988] IR 285 there was a dispute as to whether the workers had a contractual right to a 15 minute break paid at the overtime rate. An Post withdrew this break and decided not to pay for the break in future. The Court had to decide this was a breach of contract.
The Court decided that this was a work practice, not a contractual entitlement, and “the work practice in question was one which the employer was entitled to terminate unilaterally at any time”.
In an English case, Cresswell v Board of Inland Revenue, the computerisation of the PAYE tax scheme was in issue. The Court held that “an employee is expected to adapt himself to new methods and techniques introduced in the course of his employment. On his side, the employer must provide any necessary training or retraining.”
In Rafferty v Bus Eireann the workers took issue with changes to rostering arrangements, the abolition of certain duties, and the replacement with new ones. Bus Eireann argued that as a result of serious financial difficulties they had to achieve cost savings and the changes sought to be imposed were not contractual alterations but changes in work practices which are effectively at the discretion of the employer to order.
The High Court agreed and concluded that the proposed alterations relate to work practices rather than conditions of service. J Kelly also said:
In the totality of the relationship between employer and employee certain aspects of it may truly be described as conditions of service whereas other aspects are not. Even though these other aspects may have important implications for both employer and employee they are nonetheless not be regarded as conditions of service…Accordingly there is a difference in law between conditions of service and work practices.
If any of the issues discussed here affect you, as an employer or employee, you would be well advised to seek legal advice.
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