The difficult negotiations over the new contract for junior doctors highlight a tricky issue for employers: when you want to change your staff's employment contracts and they won't agree to the changes, what can you do? Imposing the new contract in the absence of agreement is a nuclear option which could result in claims for constructive dismissal or breach of contract. However, the usual solution (dismissing the employee and re-employing them on the new terms) is often not much better, as the employee could bring an unfair dismissal claim if they don't accept the new terms.
So what can employers do? At the risk of giving directions starting "I wouldn't start from here", the best way to avoid this problem is to have well-drafted contracts (with built-in flexibility) from the outset. But when you do need to make changes, you need to try to win hearts and minds - so make a persuasive case, make staff feel that the consultation is genuine (a few tactical concessions can help) and think about how you can sweeten the deal. If you can't get agreement and need to consider dismissing and re-engaging, make sure you explain in writing and very clearly why the change is essential from a business perspective and how you have tried to minimise any negative impact on staff - a robust paper trail is essential for defending any unfair dismissal claims.
Our experience is that staff often decide to accept such changes, even if they're not thrilled about them. Treating the staff fairly during the consultation process is often the best way to preserve the working relationship and avoid a morale-sapping dispute. Although with the doctors' strike due to start tomorrow, it may be a little late for Mr Hunt...
Health minister Ben Gummer told MPs that the Government was “fast-approaching” the point at which it would have to impose a new contract on junior doctors, regardless of the progress of negotiations.