Recently thousands of Asda workers from across the country, took to the streets of Leeds in protest over a controversial new contract that is being rolled out across the company. Under its terms more than 100,000 employees are required to work on bank holidays and take unpaid breaks, in return for being paid £9 an hour. Contributor Stephen Woodhouse, an employment solicitor – Stephensons Solicitors LLP.

The GMB Union, which organised the protests, believes that Asda has the funds to offer staff a much better deal than the one being put forward. The union also reported that workers face being dismissed in early November if they do not sign the new contract. It’s even suggested that some staff will be £500 a year worse off under the new arrangements. 

The introduction of the contract, known as ‘contract 6’, has come under intense scrutiny over recent weeks and led many workers and employers in the retail sector to take stock of their legal rights and responsibilities. 

Employee rights
It may seem shocking, but an employer does have the right to amend an employee’s contract, however the company must first check whether the contract itself permits this. Most well-prepared contracts of employment will contain a variation clause permitting a change to an employee’s terms due to business needs. This clause will of course need to be reasonable and it’s likely an employer will need to give as much notice as possible. 

If no variation clause exists, then an employer should consult at length with staff and seek their agreement to the changes. Without this, a unilateral change may amount to a breach of contract which could potentially give rise to a claim for constructive dismissal. 

On the other hand, if an employer proposes changes which are not agreed by staff then the company could consider dismissing the employees and re-engaging them on the proposed new terms. This really should be a last resort as it exposes an employer to claims for unfair dismissal. 

Holiday entitlement
All workers are entitled to a minimum of 5.6 weeks’ holiday per year, this right also applies to both agency and zero-hours workers. Employers must clearly define a worker’s entitlement to holidays in the contract of employment, which should also confirm the number of days’ holiday a worker is entitled to and when they can be taken. 

It’s important to note that there is no automatic right for an employee to have bank holidays off as paid leave. In the retail sector, bank holidays are some of the busiest times of the year, hence why many retail staff are required to work on those days. 

Taking a break
The Working Time Regulations confirm that employees are entitled to a 20-minute uninterrupted break when they work for more than six hours. The break should be in working time and should not be taken at the start or end of every day. However, there are no separate legal rights for smokers to take additional breaks beyond this during the day. 

In most cases, employers operate a fairly relaxed approach to smoking provided it doesn’t impede productivity. I advise adopting an unambiguous policy to ensure consistency so that employees are aware of the rules and to avoid future conflict.

Providing Asda complies with the minimum requirements for breaks, there is no obligation for them to be paid, as it depends on what the contract states. 

Changes
Even if Asda can demonstrate that its contractual amendments are legally sound, many staff feel this is being forced upon them and it’s not immediately clear to what extent this is truly voluntary. Some employees with families feel compromised as many are used to spending Christmas and Easter together but may now have to work.

On the face of it, Asda’s updates to employee agreements could hold weight given the nature of the retail sector. There’s clearly a requirement to cover bank holidays and staff will be compensated by way of a higher salary. However, by not consulting staff on the process, Asda may have incurred future disharmony and spawned negative headlines.