Ideas on Resistance to Change in the Workplace

At the first sign of resistance to your planned changes, who do you call upon? If you call upon Gestalt psychologists they will tell you about your conscious and unconscious competence and incompetence; behavioural psychologists will tell you how one person’s behaviour influences another; followed by the cognitive theorists and the psychodynamicists. A good first call is to seek employment law advice before you respond to issues arising or act on any workplace issues.

Ideally, you have identified who in the team is likely to resist change and why. If not, you need to ensure that you know who is raising objections and whether there is any reasonable basis for them. In earlier articles we noted that good practice recommends an open exchange of information and consultation with employees who will be affected by the proposed changes.

Even if an employer is clear and open in relation to the change that needs to occur, an individual employee or a group of employees may still oppose it. This is a challenge for the management team and one that needs to be carefully handled. It should be noted that the Terms of Employment (Information) Acts 1994–2001 requires employers to give employees written notice of any variation to terms of employment within 1 month of implementation; if possible, advance notice should be given.

The areas of risk are that employees who are aggrieved by how the changes are being implemented may bring employment law practices claims against the employer. For example, an employee may resign and claim constructive dismissal; may have claims for indirect discrimination because of unintended results of the changes or may claim damages for occupational stress.

We set out below details of cases which have arisen where change in the workplace was being sought and/or implemented:

Change to Shift Hours

Employee V Employer UD165/2007

The employee was employed in a hospital as a domestic operative in the psychiatric admissions unit. She worked from 8.00am to 17.30 or 17.50 each shift. Management decided to introduce a new morning shift and this was done in conjunction with the trade union. The employee was a member of the trade union. The new shift hours were from 6 am to 2 pm and were advertised.

The employee applied for the new shift as it suited her childcare arrangements. Amongst her colleagues, there was unhappiness about the change in hours because it meant that they had to work on other wards. Her colleagues’ unhappiness was visited on the employee and they engaged in a campaign of bullying and harassment against her. A specific meeting was held with the employee, her colleagues and management where a union representative was aggressive to management but also to the employee because of the shift change.

No appropriate action was taken by management to deal with the inappropriate behaviour at the meeting or the employee’s complaints. Management were also aware of the opinion of the occupational health doctor on the affect that the aggressive conduct was having on the employee’s health.

The Employment Appeals Tribunal found that “an employee cannot be permitted to be treated adversely by fellow employees when management are aware or are witnesses to the fact that the adverse treatment has been caused by the introduction of shift change by management.” It held that the employee had been constructively dismissed and awarded her €28,536.00.

Change to Sales Targets

Melligan v Karmarton Limited UD101/08

A sales executive successfully claimed constructive dismissal after his sales targets were trebled before any bonus would be payable to him. The EAT said that it was “bound to find that the contract of employment and the terms and conditions of his employment were being interfered with to such an extent that he could no longer continue in the workplace” and awarded €60,000 to the employee.

Change of Personnel

Employee V Employer UD1263/2008

The employee had been working with her employer for four and a half years, without incident. On the appointment of a new branch manager, under new ownership, the claimant gave evidence that she felt intimidated and bullied by the manner in which she was dealt with and she brought these matters to the attention of three senior managers, but, to no avail.

As she realised that her complaints were not being heard she tendered her resignation and brought a claim for constructive dismissal. The Tribunal stated in relation to whether the decision to resign was reasonable that: “Under this heading the reasonableness, the employee must be considered with reference to all of the circumstances of the case and especially where there have been changes in the terms, conditions or personality for a workplace, which the employee may find difficult to accept”. It held that it was a reasonable decision for the employee to take and awarded her €10,000.00.

Employment Equality

Employers need to ensure that any changes in the workplace comply with the Employment Equality Acts 1998-2011. The Acts prohibit discrimination on the nine grounds of gender, disability, family status, sexual orientation, membership of the Travelling Community, age, religion, race and civil status. Further, indirect discrimination under the Acts can occur where a worker or group of workers or job applicants are treated less favourably as a result of requirements that may be hard to satisfy.

Occupational Stress

Employers have a general duty of care to ensure as far as is reasonably practicable the safety, health and welfare of employees in the workplace. In the context of bringing in new work procedures, systems, technology or people, which may be unpopular or is being actively resisted, managers should guard against exposing employees to sources of occupational stress. The decisions of the EAT above provide examples of change management scenarios that have potential to cause occupational stress to employees.

The Supreme Court in Berber V Dunnes Stores [2009] IESC 10 cited with approval the following criteria set out by Lady Hale in Hatton V Sunderland [2002] 2 All E.R.1 in determining whether an employer has a liability towards an employee in tort for injury caused by occupational stress;

1. The ordinary principles of employer’s liability apply

2. The threshold question is whether the kind of harm to the particular employee was reasonably foreseeable: this has two components

3. (a) an injury to health (as distinct from occupational stress) which (b) is attributable to stress at work (as distinct from other factors).

4. Foreseeability depends upon what the employer knows (or ought reasonably to know) about the individual employee. Because of the nature of mental disorder it is harder to foresee than physical injury, but may be easier to foresee in a known individual than in the population at large. An employer is usually entitled to assume that the employee can withstand the normal pressures of the job unless he knows of some particular problem or vulnerability.

5. The employer is generally entitled to take what he is told by his employee (including what he is told by the employee’s medical adviser) at face value unless there is good reason to think to the contrary.

6. The indications of impending harm to health arising from stress at work must be plain enough for any reasonable employer to realise that he should do something about it.

7. The employer is only in breach of duty if he has failed to take the steps which are reasonable in the circumstances, bearing in mind the magnitude of the risk of harm occurring, the gravity of the harm which may occur, the cost and practicability of preventing it, and the justifications for running the risk.

8. An employer can only reasonably be expected to take steps which are likely to do some good: the court is likely to need expert evidence on this.

9. If the only reasonable and effective steps would have been to dismiss or demote the employee the employer will not be in breach of duty in allowing a willing employee to continue in the job.

10. In all cases it is necessary to identify the steps which the employer both could and should have taken before finding him in breach of his duty of care.

11. The claimant must show that the breach of duty caused or materially contributed to the harm suffered. It is not enough to show that occupational stress has caused the harm”.

In summary, employers who face resistance to change in the workplace should ensure that they understand the potential risks of employment practices claims in implementing change; that there are up to date grievance and disciplinary procedures in place together with an up to date Dignity at Work policy. Such procedures provide a framework for dealing with any workplace disputes and should enable the employer and employee to work towards identifying and resolving the reason for the resistance.