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Kedney, Bob; Ulas, TedManaging Contract Change. Mendip Papers.Staff Coll., Bristol (England).MP-07895

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The Staff College, Coombe Lodge, Blagdon, BristolBS18 6RG England, United Kingdom (5 Britishpounds).Viewpoints (Opinion/Position Papers. Essays, etc.)(120) Reports Descriptive (141)

MFOI/PCO2 Plus Postage.*Change Strategies; *College Administration; CollegeFaculty; *Contracts; Educational Finance; ForeignCountries; Higher Education; Labor Conditions; LaborLegislation; Labor Relations; Legal Responsibility;*Personnel Policy; Teacher Salaries

IDENTIFIERS *United Kingdom

ABSTRACTColleges in the United Kingdom are currently

undergoing significant shifts in how staff and faculty contracts arerestructured and this paper takes a close look at why this process isgoing on, its legal ramifications, and how administrators can manageit. An introduction describes the background to the current trendsand explores various ways of organizing and categorizingadministrator levels and responsibilities. The next section looks atwhy a college might decide to change contracts and the followingsection explores how some college administrators have achievedcontract change by offering significant improvements or bycapitalizing on retirements, resignations, or promotions. A sectionon future posribilities suggests ways that faculty pay rates may bemore directly related to their duties. The following section, onlegal questions, reviews central features of a college employmentcontract, specific issues (such as contract variations), explicitvariation with consent of all parties, termination of the contract,key features of the contract change process, imposed contract changethrough dismissal and re-engagement, and two phases of imposedcontract change. A section on the administrator's role exploreseffective delivery of new terms and conditions, staff responses andrelations, and a checklist of 14 key areas that administrators shoulaaddress. An appendix lists 14 options for gradual change. (Contains15 references.) (JB)

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Managing contractchange

Bob Kedney andTed Ulas

TheStaff

College

MP 078

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a.) Managing contract changect

(21-4 Bob Kedney andCI( Ted Ulas

TheStaff

College

MP 078

The views expressed in this Mendip Paper are those of thecontributor(s). They should not be taken to represent the policy ofThe Staff College.

About the authorsDr Bob Kedney, Associate Tutor, The Staff CollegeHas been the principal of one of the larger colleges of further and higher education, asenior officer and adviser to a number of local authorities and a head of department ina college and a secondary school. He has served on a number of national bodies,including the Joint Study of Efficiency and the Burnham/National Joint Councilwhich dealt with salaries and conditions of service. He currently teaches at The StaffCollege and the ILO (Turin), is Education Adviser to Price Waterhouse, undertakesconsultancy work, writes on aspects of post-compulsory education and is ResearchDirector for the Colleges' Employers' Forum.

Ted Ulas, Director of Personnel, West Kent CollegeAfter graduating Ted Ulas taught in further and higher education. He joined BritishSteel in a recruitment and training role and has worked as a personnel manager inpublic and private sector organisations for over 15 years. He has introduced appraisalsystems for professional and managerial staff as well as performance-related pay. Hejoined The Staff College in 1993 as a staff tutor and has recently left to take up hisnew position as the Director of Personnel at West Kent College.

Series edited and designed at The Staff College by Pippa Toogood, Susan Leather andAlison Brewer, Publications Department. and produced by the Reprographics Department.

Published by The Ctaff CollegeCoombe Lodge, Blagdon, Bristol BS18 6RGTelephone 01761 462503Fax 01761 463104 or 463140 (Publications Section)

Registered with the Charity Commissioners

© The Staff College 1995

All rights are reserved. No part of this publication may be reproduced, stored in a retrievalsystem, or transmitted, in any form or by any means, electronic, electrical, chemical,optical, photocopying, recording or otherwise, without the prior permission of the copyrightowner.

Managing contractchange

Bob Kedney andTed Ulas

Contents

1 Introduction and context

4 Why change contracts?

5 Changing contracts for newappointees

8 Contract change and the law

17 The college manager and theprocesses of change

20 What next?

22 References

23 Appendix 1

Introduction and context

Should colleges not have enough to think about,someone seems to have decided that changingacademic staff contracts is just what is needed tokeep the momentum going. Further, it would seemlikely that at least some of the changes are to bedesigned and delivered by each and every collegerather than through the 'time-honoured' route ofnational negotiations.

The long debate at national level on changes tothe contracts of managers and lecturers has tendedto overshadow the talks on change for businesssupport staff. Unlike the local authorities, collegecorporations have chosen not to delegatenegotiating powers to the national representatives.Rather, the debate focuses around how far bothsides can come to a common accord on makingrecommendations for a national framework withinwhich there will be key elements of localdetermination.

In the heat of debate, indeed of conflict, it issometimes difficult to step back to see the widerscene into which a college has to set its position.What is now clear is that corporations have takena variety of views when formulating key aspectsof thcir college contracts. Almost, but not quite allmanagers have transferred; support staff terms arethe subject of continuing national discussions;consderation of further radical contract change atthe local level therefore focuses on lecturers.Analyses have suggested that the position is veryvariable from one college to another; some haveall of their staff on new enabling contracts, whereasother have a majority of their existing staff still ofthe Silver Book,

Mendip Papers [ I

t)

The short-term focus of this paper is on thosecolleges yet to address elements of contractchanges for lecturers, the medium-term looks widerto implementation whereas in both the short- andthe long-term it seeks to inform managersconsidering the prospects of continuingdevelopment. It is in part technical and in partmore generally managerial.

Institutions have to weigh at least four options:

ht pe for joint national recommendationswhich can be accepted locally and whichdo not simply ignore key issues;

learn to live with managing the mixedeconomy;

pursue a mixture of persuasion and attritionwith turnover bringing change at its ownpace; or

accelerating the process by recourse to law.

The position of the one-third of colleges with three-quarters or more of their academic staff on newcontracts is somewhat different from that of theone-fifth with less than 30 per cent of their staffon new terms. Paradoxically, it may be the formerwho first look to legal redress, though the realityof insolvency may yet be sufficient as a 'soundbusiness reason for others to turn to radicalchange.

In reality contracts have been varied every year aschanges in terms of conditions have followedincreases in remuneration. Some elements havetraditionally been locally determined and collegemanagers have always been charged withapplication. The tradition of evolutionary (somemight say piecemeal) development based onnational negotiations and local interpretations ledmany to the view that the time had come for amore comprehensive change. The removal of thecolleges from the local authority offered 'a windowof opportunity' (Ward 1993) for a fresh start, thedirection of which is still far from clear.

By the time the dust settles and historians have anopportunity to look back and describe currentevents life in colleges will have moved on. Thecodification of the conditions of service known asthe Silver Book (NJC 1981) has lcd to many and

varied outcomes. Experience then and now pointsto at least two key stages that have particularsignificance for college managers. With the shiftto plant bargaining much more of the formal designand decision-taking now lies within the collegethan has ever been the case before. Gone are thedays when the national machinery set out the keyterms of specific changes, issued guidance andleft local authorities to settle marginal issues, withvarying degrees of advice and input from collegeprincipals. The time has now gone when the mostsenior of the colleges' representatives could debatetheir status as management advisers or staff-siderepresentatives. In the absence of any substantiveagreement at the national level the employers' sidehas offered advice to its members but the detailsof the contract is very much a local task.

The challenge of role change has been taken up bymiddle managers as they have been presented withnew dilemmas. Not only are they at the criticalinterface between those leading the pursuit of thenew contracts and those whose terms ofemployment are being changed, they are alsocharged with the tasks of interpreting andimplementing those contract changes. It is theywho will be held accountable in due course for thedelivery of the new terms. Change, it would seem,is really happening as the college executive isincreasingly called upon to look beyond the short-term and specific in developing and delivering thecollege's strategic plan. Further, the chain ofcommand is shortening, perhaps nowhere more sothan in terms of the management of staff. The shiftin status and role of the national machinery isbecoming clear, the intervening buffer of the localeducation authority has gone and the corporationis looking to its managers to manage. Middle tierofficers arc increasingly facing much more thanthe curriculum decisions they once had to copewith. Administration of the status quo or decisionstaken by others is rapidly going the way of thecommittee culture in many colleges.

Before turning to the specific issues of contractchange it may bc helpful to set the current demandsin context.

Becker and Neuhauser (1975) suggest that staffroles in organisations can be seen broadly as eitherproducing direct services (such as teaching orbuildings maintenance) or as co-ordinating andservicing the productive functions. Management,

F27 Mendip Papers

they argue, is the exercising of choice by thosewho co-ordinate. If it is not, then the servicefunctions are the bureaucratic application of therule-book as written by others. It might thereforebe thought that historically heads of departmentand other college managers have been little morethan low level administrators interpreting theSilver, Purple and White Books. Analyses of pastpractice, however, point to creative interpretationsthat have gone well beyond this. In the currentcontract debate managers have the opportunity formuch greater discretion, both at the outset andthereafter. What is less than clear, however, is howfar that input will be from the top, the middle and/or first levels of management in relation to designas well as delivery of the terms of the newconditions of service, and how the use of thatdecision-making will be related to corporate ratherthan individual ends.

Individuals work within organisational contextsand colleges differ in their management cultures.It will be for the reader to interpret the generalstatements made here and fit them to the particularcircumstances they know best. Style owes muchto history and to the current leadership, but thepace and scale of current and future changes willalso be influential. The top to middle relationshipsare nevertheless likely to be a mix of the following:

Practising mushroom managementContract change is felt to be too sensitivean issue for debate and discussion, leadersmust lead.

The instructional approachIn terms of matters of regulation good headsof department are like children; it is betterthan that they be seen but not heard.

The procedural approachIt is not for us to question why, we willfollow the rule-book, 2s writtcn by CEF(Colleges' Employers' Forum). That is whatwe pay our subscription for.

The consultative approachTop management seeks the views of othcrmanagers, either individually, through thekitchen cabinet or corporately but willdecide when they have reflected on theadvice that has been given.

The participative modeManagers up and down the college meet todebate as a matter of course and opinion issought on the issues before decisions aretaken by the executive. Ownership of theparty line by managers is expected.

The negotiated approachPower is shared and managers debate andshift to a common cause which isunderpinned by collective ownership.

The roles of the middle and junior managers varyin each case; particularly so if they try to play apassive role and wait to be spoken to beforeexpressing a view. At one end of the spectrum itcan be argued that middle and junior managersalready have a complex curriculum load which isbeing added to by the demands of the fundingmethodologies. Better that they concentrate ondelivering well the traditional tasks of the head ofdepartment; let legal and industrial relations issuesbe picked up by specialists. It can, however, alsobe argued that such managers are uniquely placedto understand the practical implications and to hearthe fears as well as the enthusiasms of colleagues.Before being asked to convert the fine words andaspirations of any change into concrete terms, suchmanagers might expect to give advice and soundearly warnings to those about to pronounce.

Colleges are well known as people-basedorganisations and it is an obvious truism that it isthrough its staff that the organisation will mostclearly express its values and aspirations. Thedetermination and translation of the terms of thecontract of employment into practice is thus a keyform of expression of the college's priorities. Thiscan be expressed in a highly simplified form as alinear progression flowing down from the collegemission and prime values as shown in Figure 1.

It can also be argued that the real mission statementshould be read from the actions (including customand practice) as they speak much louder thanwords. Either way, the model is, in reality,dynamic in that each element intcracts with theothers. Thus, if managers are to be proactive theyneed to recognise that their task is to participate ineach and every stage. If not they have to reactrather than lead, or abdicate their managerial roleand fall back to being bureaucratic cyphers withoutpower or influence.

Mendip Papers,

3

Figure 1: Implementing the college contract

1. The mission statement

2. Purposes and strategic objectives

3. The contract and the terms and conditions

4. The statement of particulars and the job description

5. The allocation of duties, including timetabling

6. Custom and practice

At the contextual level there is often reference toequity, quality, flexibility and the centrality oflearning. At the specific level, so the argumentgoes, timetabling and custom and practice havegrown to preclude the primacy of the student, thusleading to the need for change. This separation oftheory from practice is unlikely to be resolved byover-simplistic analyses which argue for a top-down model in terms of either design flowing fromthe college mission, or bottom-up approachesbased on winning hearts and minds. Steady growth,or at least stability, has tended to nurture customand practice in many colleges. Economic pressuresand the need for rapid change have given primacyto different strategic objectives in some institutions.To these have to be added a changed politicalclimate in industrial relations, a greater level ofexposure than has often been the case before, anda platform for those who wish to exerciseleadership. These factors have created anenvironment in which the status quo is unlikely tobe sustained.

Why change contracts?

For many in the FE system the change of the termsof the lecturer's contract is producing more heatthan illumination. It can, however, be argued thatknowing why current terms should be revisedshould be:

the foundation for setting direction;

the explanation of the perceived need forchange;

the basis for seeking to persuade doubters;

the sustenance of the conviction ofmanagers; and

the basis for measuring progress.

Hav,ng started there is often a feeling that theprocess must be finished, and furthermore mustbe delivered successfully. When reviewing thecurrent scene Jim Horrocks, Principal of BamfieldCollege, identified and rejected a number ofreasons circulating around the system. In apresentation to a Staff College conference he putaside the argument that the changes 'will make acollege more effective' for whilst it may reducethe unit of resource it is unlikely to shift therelativities which already exist. In turning to theargument that it 'will get more out of staff' it isgenerally accepted that some, perhaps many oreven the majority, of lecturers work well beyondtheir contractual minimum. For protagonists it issaid to be a means of 'damaging the union' whereasin practice 'attack is the stuff of solidarity'.Horrocks went on to counter the fourth reasongiven 'flexibility' with the argument that it is

Mendip Papers

the task of draughtsmen of contracts to ensure thatthey are clear and precise in their intent.`Contracts,' he argues, `are by nature prescriptiveand are there to pin people down.'

Before addressing some of the points at issue, andJim Horrocks's own rationale for contract change,it may be helpful to recall that the present positionhas been reached on the back of long endeavoursto tackle many of the challenges which face usnow. Yet the current terms and conditions are saidto:

present obstacles to improving productivity;

restrict modern approaches to pay andconditions;

present obstacles to functional flexibility;and

not always be implemented effectively bycolleges.

(Vicki Fagg and John Anslow 1992)

From debate and discussion it is possible to deducea long list of possible reasons for pursuing contractchnge in colleges. The particular fit in terms ofdrivers and priorities will differ from college tocollege. For some, they may appear to berationalisations rather than what they areunderlying good causes that have not been putand tested in debate. Six clusters arc identifiedhere (Figure 2) with a number of elements withineach. The catalogue is far from comprehensivebut may be helpful in exploring relationshipsbetween changc and the mission and values of thecollege.

The arguments can be seen to range frcm thespecific to thc highly general, and from reactionsto external threats and demands to internalrealisations of kcy values. Some lend themselvesmore readily to debate and negotiation than otherswithin the college management group, thecorporation, the recognised trade unions andcolleagues in the staff room. It is likely, however,that a sense of direction that is understood, sharedand tested in debate will serve the college managersomewhat better than travelling through theprocesses of contract change and implementationas a voyage of oiscovery.

Jim Horrocks, in starting from a position at thetop of the first FEFC league table of college unitcosts, argues that he is looking primarily to hisbusiness plan for the rationale for contract changeat Bamfield. By comparing die existing contractterms with client needs, the college charter, studentagreements and the key elements of the FEFCfunding methodology, it is clear that there arepotentially major shortfalls in many institutions.These have been bridged by staff through what isvariously described as goodwill, discretionaryactivity or the professionalism. This assumptionhas underpinned the origins and preamble to whatis now the qilver Book. The argument now turnson the degree to which the service should be basedon the balance of contracted terms under thedirection of management and the level of goodwilland individual commitment. Horrocks and otherslook to the proportions of voluntary work as beingnearer `one to two per cent rather than 30 to 40 percent of base contract time'. Such a view does notseek to deny that staff work hard or should beundervalued but rather that complex and rapidlychanging organisations need a better basis fromwhich to manage, just as staff need to be valued,protected against unfettered managerialism andhave recourse to the equity expressed by collegesin their mission statements.

Changing contracts for newappointees

College managers have been most experienced inachieving contract change by offering significantimprovements or by capitalising on suchopportunities as retirements, resignation orpromotions. Major contractual change has tendedto be largely undertaken at national level with payshifts being related to marginal changes inconditions of service. The latter (opportunisticchange) has waited upon individuals to act first,or for growth and the creation of new posts.Movement from established to temporary and fromfull-time to part-time appointments has been moretypical. Interest has been shown from time to timein variations on these themes with the use of fixedterm contracts and fractional offers. This somewhatlimited range of management options has tendedto relate to individuals rather than the workforcemore generally. The exception has been the goldenhandshake offered to the most experiencedcolleagues to induce them to leave the organisation.

Mendip Papers 5

Figure 2: Twenty possible reasons for changing contracts

A. Government policies

The two per cent holdback until flexible contracts are introduced

The need to fund pay rises

B. In response to funding changes

The three per cent efficiency top-slices set for three years

Any shortfall on the student growth targets over the three year period

The impact of convergence

Clawbacks in funding, e.g. student drop-out and qualification rates

Any future funding changes, e.g. higher efficiency rises

C. Responding to the college" s legacies

Balancing the books meeting inherited deficits

Contributions to health and safety and other legal costs

Providing for contingencies and reserves

Capitalization shifting the pay/non-pay balance

D. Investment in change

Resourcing curriculum chanae new subject developments, new delivery methods and/ornew student services

Funding job evaluation and equal pay

Bringing in new reward structures

E. Management/structural change

Corporate/executive decisions strong (macho?) leadership

Trade union pressure leap-frogging claims

Internal re-organisation or merger/takeover

F. College values and strategic objectives

Equity of treatment for staff and students

Investment in prime values and meeting new needs

Delivering the business plan with efficiency, effectiveness and economy throughcoherence.

[(;] Mendip Papers

Flexibility largely lay elsewhere in the creativeand co-operative interpretation of the Silver andPurple Books by colleagues within departmentaland sectional teams.

Perhaps the most radical shift in recent years hasbeen the introduction of what is sometimes termed'new working practices'. Para-professional postslong known in schools, universities and trainingorganisations are now beginning to take over someof the extensive range of tasks that could formpart of the lecturer's job as defined by the SilverBook. A simple analysis of the elements whichcan form part of the lecturer's duties can be seenas offering substantial flexibility. When linked toterm-time only or fractional posts on collegedevised or APT&C-related pay scales, the outcomecan be both tailored to specific needs of the collegeand give some measure cf security to the post-holder. The following illustrates a range of tasksthat can form the basis of new appointments:

instructors;work placement co-ordinators;demonstrators;workshop supervisors;student counsellors;learning support tutors/flexible learningfacilitators;marketing officers;learning materials designers and producers;invigilators;researchers and consultants.

The list can be extended by freeing academic stafffrom administrative and clerical dutics also.

At the time of writing little seems to be known ofthe scale of such activity, or indeed of the payrates, though the APT&C scales seem typical. Withthe shift of lectufers to similar conditions, and theopportunity to look again at their pay structure(notably by replacing the long main gradeincremental scale by shorter and more specificranges) it is likely that future attention will focuson relating pay rates to duties. A cursory reviewof present practice suggests a somewhat ad hocapproach with some para-professional posts aboveas well as below the current lecturer scale. Yet, asSannders has indicated, the latter spreads fromscale 4 through to the first stage of the principalofficer grades (Saunders 1993). There is, however,a marked difference between thc choice of pay

and condition of a scale 314 or a scale 5 gradingand that of the long incremental spine of thelecturer scale. Near automatic progression throughthe latter takes the post holder to an annual salarywell beyond that of an instructor or workshopsupervisor.

The guidance given by the FEFC to collegespreparing their strategic plans suggests that thehuman resource management strategy should setout the staffing implications of the college's needsin the medium-term (FEFC 1994). However,colleges have as yet to determine their models forthe future establishment, and when they do it islikely that they will have greater fluidity than inthe past. In order to explore the possible cashimplications of moving some new appointmentsfrom lecturer posts to alternative terms andconditions a number of illustrative costs have beencalculated. Taking the following factors intoaccount, comparative costs can be drawn up(Figure 3):

the current levels of productivity af around95 per cent of class contact at thetimctabling stage (DFE 1992);

new lecturer contracts shifting staff fromcurrent terms to annualised hours of 900hours; and

instructors/supervisors to 1200 hours peryear.

The salary costs used here include employers' on-costs. The assumptions can be modelled in anumber of ways but the outcomes will consistentlypoint towards change and differentiation. Form,size and pace will no doubt vary from college tocollege. For example, it may be that the use of ashort pay scale from the start of the current lecturerscale will be termed 'assistant' or 'lecturer gradeA', but with a broadly similar outcome to whatmay elsewhere be termed instructor or supervisor.What will, however, have to be determined withcare arc the duties associated with each post. Thecomprehensive flexibility of the current descriptionof a lecturer's job will no longer be available tothe line manager when such changes areintroduced. If custom and practice prevail thecollege could expect to be open to challenge underthe Equal Pay Act.

mendip Papers L7

Figure 3: Comparative 'contact' hourly costs

Lecturer

Salaryinc. on-costs

95 per cent of annualhours

Cost per hour

(Silver Book) £23,200 673 £34.50

Lecturer(new contract)

£23,200 855 £27.10

Instructor/assistant lecturer

£14,8040 1140 £13.00

Basing contract change on opportunities for newappointments alone calls for an assessment of pastand projected levels of turnover and theidentification of a range of options for managementintervention (see Appendix 1). Clearly costdifferentials of the order illustrated above give newimpetus to managed change but decisions aboutbest fit will need to take account cf more thanfinance. Morale and the fit of the staffing resourceto the college's needs in both the short- and thelonger-term will necd to be assessed. Considerationwill also have to be given to the management ofan even more mixed economy. The product of thelast decade has given colleges a mix of lecturer Iand posts in the main grade scale, 'Houghton'and substantive senior lecturers, with varying levelsof individual protcction. These, however, tend torepresent past improvements from the perspectiveof individuals and 'the devil you know'. Puttingon one side for a moment the Minister of State'sletter, it is in this context that managers will needto weigh the furthcr option of changing/worseningthe terms and conditions of existing staff.

Contract change and the law

The legal foundation

A manager who is considering the introduction ofcontract change has to be awarc of thc legalfoundation of the employment contract. Thecontract of employment is a contract governed bythc principles of contract law. In that respect it isno different from any other contract such as a

contract to buy a car or a contract to provide aservice such as dry cleaning. The employmentcontract shares the following features with allcontracts:

it is an agreement;

it is legally binding; and

it is made voluntarily by the parties to thecontract.

In the contract of employment the employer andthe employee agree to carry out terms of thecontract; each one promises to fulfil their own partof the bargain. Because the contract is an agreementbetween two parties, one party cannot imposevariation to the contract. If one party refuses tohonour the terms of the original contract the otherparty does not have to accept this; acceptance ofvariation to the contract has to be agreed eitherexplicitly or implicitly by behaviour. If one partydoes not stand by the terms of the originalagreement, the other party can seek to enforce thoseterms by using thc civil courts in England andWales the High Court or the County Court. Inthese courts individuals have to be represented bysomeone from the legal profession. Since July 1994it has been possible for a breach of employmentcontract case to be taken to an industrial tribunal,where an individual can represent him or herself.However, industrial tribunals will only be able tohear breach of employment contract cases v. herethe employee is no longer employed and the claimto the industrial tribunal has been presented withinthree months of the ending of the employment. A

8 1 Mendip Papers

contract is made voluntarily between the partiesto the contract. In the case of -An employmentcontract, the parties are the employer and theemployee. The contract is a personal contract: theemployee cannot offer a substitute to work in hisor her place; the employer cannot assign theemployee to work for mother employer, unlessthat is expressly provided for in the employmentcontract. If the employment contract is madedirectly between employer and employee, whatrole does a trade union that represents an employeeplay in determining contract terms? The legalposition is that the trade union does not play anydirect role. The employer may bargain with thetrade union and reach agreement; the employeesmay accept that the trade union represents themfully in negotiations about their contract terms; inthe eyes of the law, however, contract is madedirectly between the employer and the employee.Agreements made between trade unions andemployers will not determine the contract termsof an employee unless the employer and theemployee expressly agree to incorporate employer-union agreements into the contract.

The employer and the employee will have made acontract of employment when there has been anoffer of terms, an acceptance of terms and anagreement that there will be an exchange betweenthem of things that arc of value. This exchange isdescribed by the legal term 'consideration'. In acontract of employment for instance the employerpromises to pay a wage in return for theconsideration of the employee's work; theemployee promises to work in return for theconsideration of a wage.

Offer of terms, acceptance of terms andconsideration, then, arc sufficient to form thecontract. This process of making thc contract doesnot need to be put down in writing. An oral contractis a perfectly valid contract. The significance ofthis for employment contracts is that it is commonpractice for the employer and prospectiveemployee to discuss terms at interview and a verbaloffer of employment is made. In law thesediscussions are capable of fixing the terms of thecontract of employment. If the contract terms aredetermined orally, these will bc the terms of thecontract even if thc employer subsequently writesto the employee asserting different contract terms.A commitment about terms of employment that isgiven during an interview or discussion with a

prospective employee is a contractual commitment.A manager who discusses with an employeevariations to standard terms of employment shouldbe aware that he or she may be making acontractual commitment on behalf of the employer.

Is there then always the hazard for the employerthat a discussion about terms may override asubsequent written offer of employment? Apractical way of ensuring what is documented bythe employer forms the terms of the contract ofemployment is for the employer to write to theemployee setting out the terms of the contract forwritten acceptance by the employee and thisdocument should include a clause stating that itsterms supersede all earlier correspondence ordiscussion on the terms of the employmentcontract. A clear example of this type of clause isfound in the Colleges' Employers' Forum (CEF)model contract for academic staff:

This contract of employment and anydocuments expressly incorporatedherein constitute the entire terms andconditions of your employment. Theycancel and arc substitution for anyprevious letters of appointment orcontracts of employment and all otheragreements and arrangements (whetherexpress, implied or deriving from anycollective agreement) relating to youremployment by the corporation.

Those terms that the employer and the employeehave agreed and are clearly stated within thecontract form the express terms of the contract.As well as express terms a contract may containimplied terms or terms incorporated fromelsewhere. Implied terms are those that can betaken to have been agreed by the employer andemployee in creating the contract. The courts haveruled that in every employment contract there arethe implied terms of care, fidelity and trust. Theduty of care means that every employee shouldexercise reasonable care and skill in carrying outhis or her work; to meet the term of fidelity theemployee should provide faithful service and notdeliberately obstruct the employer's operationsthrough withdrawing goodwill. The employer andthe employee must have mutual trust andconfidence. Failure to honour an implied term is abreach of the contract. Where the employerbreaches a fundamental term of the contract the

Mendip Papers L9 j

employee can leave and claim constructivedismissal. The destruction of mutual trust orconfidence by an act of the employer is often thebasis of constructive dismissal claims. Instanceswhere the courts have found that employers brokethe implied term of trust and confidence include:seriously undermining the authority of asupervisor, failure to protect an employee beingharassed for having worked during a strike; andunreasonable insistence on a psychiatricexamination.

The contract may contain terms that areincorporated from elsewhere. The commonestexamples are union agreements. In law, theemployment contract is made directly between theemployer and the employee, even where theemployee is a member of a recognised trade unionthat has negotiating rights over terms andconditions of employment. For union agreementsto affect the individual contract of employment,the employee and the employer must themselvesagree that those agreements are to be incorporatedinto the contract. An example of an incorporationclause in an individual contract is to be found inthe CEF model contract for academic staff:

Any changes in the terms andconditions of employment applicableto academic staff appointed by thecorporation on the terms andconditions set out herein which may beagreed after the date of this contractbetween thc corporation and any tradeunions recognised by the corporationin respect of such staff shall beincorporated automatically into yourcontract of employment.

Note that the terms of the union agreement arcincorporated automatically. This means they willapply whether or not the employee is a member ofthe union, and whether or not the employee agreeswith the change to the terms and conditions. Byaccepting the incorporation clause the individualmember of the academic staff has given arecognised union the authority to determine his orher terms of conditions of employment. In thesecircumstances lecturers who are not members ofthe recognised union are denying themselves theopportunity to influence changes to their termsand conditions.

Varying the contract

The employment contract is made by the employerand the employee agreeing to fix the terms whichthen become legally binding on both parties. Howthen can a contract he varied? In law there are fourways of varying the employment contract:

flexible contract terms;

through negotiation and agreement with aunion (when a union agreement isincorporated);

mutual consent;

imposed change by dismissal and re-engagement on the new terms.

If there is an express flexibility clause in thecontract the employer can rely on that clause tomake changes to the employee's terms andconditions. For example, a college employee iscontracted to work for the college and cannot berequired to work for college subsidiaries unlessthis is expressly provided for in the contract. Forthis reason the CEF model contract includes thefollowing clause:

You may be required in pursuance ofyour duties to perform services notonly for the corporation but also forany subsidiary.

However, the courts will not support a flexibilityclause that is written as a catch all. A clause suchas 'You may be required to perform any otherduties as may from time to time be assigned toyou by the principal' is so wide and open to beingapplied unreasonably that the courts will not allowthe employer to rely on it. A clause along the linesof 'You may be required to perform any otherduties consistent with your position' would be amore effective flexibility clause as it is notunreasonable. As the change in terms is expresslyallowed in the contract there is no requirement fora minimum period of notice of the change.However, in thc case of a mobility clause wherethe employer is entitled to transfer the employee'splace of work, the courts would expect theemployer to give reasonable notice of the transfer,bearing in mind particularly whether the employeewould have to move house.

10 Mendip Papers

If the contract contains a clause incorporating unionagreements into the contract, then the contract canbe varied by reaching a new agreement with theunion concerned. Since November 1993 employershave been required to give neLi employeesinformation about any collective agreements thatgovern the terms and conditions of their contracts,thcreby expressly stating which terms are coveredby incorporation and can be varied by unionagreement.

The incorporation clause is essential for any unionagreement to change the terms and conditions ofindividual employees. Without such a clause theemployer has to get individual consent to thechange. An example from the FE sector willillustrate the complications that can arise if thereis no incorporation clause. Academic staff on themanagement spine who were employed in collegesbefore April 1993 have the relevant National JointCouncil provisions that were agreed by NATFHEand thc local education authorities incorporatedinto their contracts. This is so even where theemployee was a member of the Association ofCollege Managers, not of NATFHE. In April 1993the NJC lapsed. The NJC agreed terms andconditions, however, remained as part of thecontracts of individuals on the management spine.In December 1993 agreement was reachednationally between the Colleges' Employers'Forum and the Association of College Managerson changes to terms and conditions. Thisagreement did not change the terms and conditionsof individual college managers, even if they weremembers of ACM. There was no clause in theemployees' contracts that provided forincorporation of that national agreemem. For theterms of the agreement to apply to a collegemanager the individual manager had to accept anew contract that superseded the existing one. ThcCEF advice to colleges therefore was thatindividual managers be persuaded to accept thenew contracts. The new contract contains anincorporation clause so that when a collegeaccepted a national agreement reached by the CEFand trade unions re :ognised for management spinestaff the agreement applied to the individualmanager.

An employer may have an agreement with a unionthat has been incorporated into employees contractsand the employer wishes to change the agreement.The employer will seek to negotiate the change

with the union. If no agreement is reached, theemployer may decide to terminate the agreementwith the trade union, something which theemployer is entitled to do. The termination of theagreement with the union does not affect thecontract of the individual employee. The provisionsof the agreement continue unaffected within theemployee's contract. This situation was consideredby the courts in a case involving British Gas. Meterreaders at British Gas were paid a bonus schemethat had been agreed with the recognised tradeunion, the Transport and General Workers Union,and this agreement was incorporated in theircontracts. British Gas brought in a new type ofgas meter that was easier to read and sought torenegotiate the bonus scheme as it was now payingout large sums to the meter readers. Thenegotiations broke down and British Gas gave theunion notice of termination of the agreement,something it was fully entitled to do. British Gasalso wrote to each of the meter readers advisingthem that after a period of notice it would stoppaying the bonus. At the end of the notice period,British Gas stopped the bonus. The meter readerstook British Gas to court 'for breach of contract.They won their case. The court ordered BritishGas to continue to pay the bonus Once anagreement is incorporated into an employee'scontract the terms of that agreement are legallyenforceable by the employee (or the employer)and those terms remain part of the employee'sterms and conditions of employment until theemployment contract is lawfully varied.

Itariation with consent: explicit

As the employment contract is an agreementbetween the employer and the employee it can bevaried with the mutual consent of both parties.Where there is clear acceptance of the change, theconsent of the employer and the employee can bemade explicit. It is good employment practicetherefore when making changes to contracts byindividual agreement to write to the employeestating the change and getting thc employee'ssigned acceptance. If the change is to one of theterms and conditions that the employer is requiredto give the employee as a written particular ofemployment under the Employment Protection(Consolidation) Act, then thc employer mustanyway write to the employee giving details ofthe new terms within one month of thc changetaking place.

Mendip Papers [11 1

Au

Variation with consent: implicit

Matters are not so clear when the employer makesa change and claims the employee has implicitlyaccepted the change. The contract of employment,like any other contract, is a set of promises whichthe parties to the contract agree will all behonoured. If any one of the contract's terms is nothonoured this is breach of contract; the offer of analternative term does not make any difference tothe fact that one party has repudiated the contract.The injured party has no obligation to agree tochange the terms and is entitled in law to have allthe original terms of the contract honoured in full.Where an employer changes the contract withoutthe explicit consent of the employee and theemployee continues to work, it may be the casethat by doing so the employee has accepted thechange and thereby affirmed the new contract. Ifan employee is faced with a unilateral change bythe employer to a fundamental term of the contractthe employee may decide to resign and claimconstructive dismissal. If the employee works forthe period after the change and then resigns,claiming constructive dismissal it is opcn to theemployer to claim that by continuing to work theemployee has accepted the new contract. Thedecisions of the courts in these cases will dependon the facts of the particular case. However, it isclear that if the employee makes no protest aboutthe employer's breach of contract and continuesto work and be paid, the courts will take the viewthat the employee has agreed to the employer'sunilateral variation to the original contract.

The employee who does not want to accept achange in terms and conditions imposed by theemployer can either resign and make a claim toindustrial tribunal for constructive dismissal orcontinue to work under protest whilst using thelaw to have the terms of the original contractenforced. Where it is clear that the employer is inbreach of contract and the employee has continuedto work under protest, the courts have found in theemployee's favour and awarded damages togetherwith the declaration that the change is unlawful.For example, the Ferodo company cut thc wagesof Mr Rigby because of a need to reduce its costs.They did this after failing to get agreement to thechange but with notice of the change. Mr Rigbyprotested, continued to work and started civilproceedings against Ferodo for breach of contract.The courts found in Mr Rigby's favour and

awarded him damages of his back pay. The courtsdid not consider whether Ferodo were justified inneeding to cut wage costs; it was a breach ofcontract and Mr Rigby was entitled to have all theterms of the original contract honoured. The factthat Ferodo gave notice of the breach was irrelevantas Ferodo had no right to depart from the contractin the first place. While an employment contractcontinues, all of its terms must be met.

Termination of contract

If the contract is ended then a new contract can beon whatever terms the parties agree. So, if anemployee refuses to agree to this change of contractthat an employer wants, under the law of contractthe employer should end the contract dismissthe employee with contractual notice and offerre-engagement on the terms the employer wants.Dismissal is itself covered by employmentprotection legislation and the employer whodismisses can only do so lawfully by meetingcertain criteria. For a contract change dismissal tobe fair, the employer has firstly to show the reasonfor the dismissal and that it was a substantial reasonsuch as to justify the dismissal. Secondly, theemployer has to satisfy the industrial tribunal thatin the circumstances of the dismissal he actedreasonably in treating the reason for the dismissalas a sufficient reason for dismissing the employee.Employment law therefore requires the employerto have substantial grounds for needing to changecontracts and also to follow the procedure of areasonable employer.

When an employer dismisses he has to abide bythe legal rights of the employee. In certain typesof dismissal he has in addition to abide by thelegal rights of a recognised trade union. Since 1975recognised trade unions have had consultationrights in the event of dismissal for redundancy.The Trade Union Reform and Employment RightsAct of 1993 gave recognised trade unions the rightto be consulted in the event of dismissal arisingfrom change of contract. The consultation rightsover contract change dismissals include the rightto be consulted at the earliest opportunity. Theconsultation process has to cover consultationabout ways of avoiding the dismissals, reducingthe numbers affected and mitigating theconsequences of the dismissals. The consultationmust also be undertaken with view to reachingagreement with thc union. Although of course

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because this is consultation and not negotiationabout dismissals the management can at the endof the period implement the dismissals, leaving itto the courts to aecide whether it has behaved as areasonable employer.

These consultation rights put the trade union onthe same footing in a situation of dismissal arisingfrom change of contract as it has in redundancydismissals. If the employer does not carry out itsobligations to consult with the recognised tradeunions the union can get a ruling from an industrialtribunal that the employer pay the employeeaffected a sum that reflects the loss of pay arisingfrom the failure to consult. Depending on thenumber of employees dismissed, this can be up tothree months pay. It is also likely that the tribunal'sview of whether the dismissals were fair or notwill be affected by its decision as to whether therehad been adequate consultation with the recognisedtrade union.

Contract change: key legal features

For the college that wants to change the contractsof its staff the key features of the legal status ofthe contract are the following:

the contract is an agreement with theemployee;

all the terms of the contract are legallybinding;

if variation of contract cannot be agreedthe contract must be terminated;

the termination of the contract has to be fora substantial reason and carried out in areasonable manner;

the recognised trade union must beconsulted about the dismissal.

Varying contract: the process

The process of varying contracts is one ofintroducing change. The procedure for changingcontracts should recognise the importance ofcommunication in the effective management ofchange as well as meeting the key legalrequirements. A procedure that meets both thesecriteria is onc that consists of two phases. The

first is the process of trying to persuade staff toagree to the change. If that does not succeed theprocedure moves to the second phase which is theimposition of the change, by dismissal and theoffer of re-engagement on the changed terms.

The employer who intends to change contractswill begin the persuasion phase by identifying theneed for change and drafting the changes that arerequired. The need for change has to be substantial;for example, college management may decide thatthe college's overall strategic aims require changeto the lecturer contract. College managementshould identify clearly the good reasons for thechange. This will help persuade staff to accept thechange and if some staff remain unconvinced andhave to be dismissed will persuade the industrialtribunal that the college had a substantial reasonfor dismissal. College management shouldcommunicate directly with staff as well as dealingwith the unions. The management is responsiblefor ensuring that the broad principles underlyingthe change and the key changes proposed arecommunicated to staff at the outset. Staff and tradeunions may suggest a number of modifications tothe original management plan. The plan should berevised if there are good grounds for doing so. Atthe end of the discussion period the college shouldmake a written proposal setting out the changesthat are reasonable given the college's position.These changes may mean worse conditions orlower pay for staff. Provided there is a good reasonfor the changes the employee cannot insist onretaining the original terms of the contract.

The employee should be given time to considerthe college's offer. At the end of this period thecollege will know how many staff have agreed tothe ncw terms. The college will have to make apolicy decision about those who have not acceptedthe change. Are they to be left with their originalcontacts?

If the college decides that all staff must be on thenew terms then the contract change process movesto the second phase. The change is imposedthrough dismissal and the offer of re-engagementon the ncw terms. The decision to impose contractchange is a serious one and should only be takenin full knowledge that carrying it out will be acomplex and perhaps lengthy process. Once acollege has started on the phase of imposingcontract change it must follow each of the stepsmeticulously or be at risk of substantial legal

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penalties. Should the college decide later that it nolonger needs to dismiss those who refuse thecontract change it will be difficult for the collegeto stop the process of contract change withoutincurring a substantial deterioration in staffrelations.

The staff who have not agreed to the change mustbe informed that they face dismissal. The collegeshould begin the consultation process withrecognised trade unions whether the dismissedemployees are members of the union or not. Thecollege will write to the union with the followinginformation:

the reasons for the proposed dismissals;

the numbers and dcscriptions of theemployees they propose to dismiss;

the total numbcr of employees of thosedcscriptions;

- that the employees to be dismissed havebeen selected because they did not acceptthe proposed changes to their contract;

- that the dismissals will be carried out withfull contractual notice; and

- the period over which the dismissals are totake effect.

The consultation has to cover ways of avoidingthe dismissals, reducing the numbers involved andmitigating the effects. The college must consultwith a view to reaching agreement although thereis no requirement that the college must achieveagreement with the union. The penalty for failingto consult properly is that the union can get a rulingfrom an industrial tribunal that the employeesaffected are to receive a protective award of oneweek's pay for every week by which theconsultation period was shortened by theemployers, subject to a maximum period of 90days. When a tribunal finds that the consultationwith the trade union has not been adequate thclikelihood is increased that the tribunal will findthe ultimate dismissals to be unfair; tribunals placean importance on consultation with representativesand their staff in the process of contract change todismissal and re-engagement. The consultationrequirements on the employer who is carrying out

contract change dismissals are identical to itsrequirements to consult when carrying outredundancy dismissals. The employer, however,should bear in mind that as in redundancydismissals consultation with the trade union is notsufficient. Consultation with the individual isequally important. The legal requirement that thecollege consults recognised trade unions meansthat the unions have the opportunity for furtherdiscussion about the pmposed change to contracts.If the college did not make a serious attempt toconsult the trade unions in the first place it cannotavoid having to consult in good faith in the secondphase.

Consultations with trade unions must take placeregardless of the number of employees to bedismissed even if these employees are not membersof the union. If 10 or more employees are due tobe dismissed the college has to inform theDepartment of Employment by completing theDepartment's form HR1 which is also used whendismissing employees on the grounds ofredundancy. This notification has to be made atleast 30 days ahead of the date of the first dismissalcoming into effect, if between 10 and 99 employeesare to be dismissed over a period of 30 days orless. If 100 or more employees are due to bedismissed o 4 period of 90 days or less, thenthe notification period has to be at least 90 daysahead of the date of the first dismissal taking effect.

Although the consultation with the trade unionshas to start at the earliest opportunity, the periodfrom the start of the consultation to the date of thefirst dismissal taking effect cannot be less than thenotification period to the Department ofEmployment. In this period the college has toconsult with a view to reaching agreement but theissue of dismissal notices does not have to waitupon the end of the statutory consultation period;if the employer has a meaningful consultation withthe trade unions and that consultation has come toan end, then at that point the college can preparefor issuing individual dismissal notices. However,the college must consult with each employee it isproposing to dismiss. During that individualconsultation the employee may give a number ofreasons why he or she cannot accept the proposedchange of contract. The college must consider thesepoints and decide whether it is being a reasonableemployer in requiring that employee change hisor her contract. For example, change of working

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hours may cause great difficulties to an employeewith particular domestic commitments; theemployee explains this and suggests an alternativevariation to the contract in his or her case. In thissituation a reasonable employer would not dismissthe employee's proposal out of hand but wouldreflect on it. If the employee's proposal does notmeet the employer's requirements in proposingchanges to contracts, then of course the employeris under no obligation to vary its original plan.

If at this point there are still some staff who haverefused to accept the new terms, the college willbe faced with dismissing them. Mistakes by thecollege at this stage may leave it open to claims ofwrongful dismissal as well as unfair dismissal.Wrongful dismissal occurs when the dismissal iscontrary to the contract. For instance, if a managerdismisses without having the authority to do so orif the contractual dismissal procedure is notfollowed. Therefore the dismissal decision mustbe taken by the person authorised to do so by thecollege's instruments and articles and the appealprocedure against dismissal followed.

As a reasonable employer the college will consultwith individual staff before issuing a dismissalnotice. An offcr of re-engagement on the ncw termswill be sent out with the dismissal letter and areasonable employer would give an employee afinal opportunity to accept the new terms.

Imposed contract change: thetimescale

The process of imposing contract change throughdismissal and re-engagement will take time. Inthc case of a college dealing with lecturersemployed under Silver Book conditions there isthe complication that dismissal of notice can onlytake place on fixed dates in thc year by 30October to take effect on the 31 December; by 28February (or 29 February in leap years) to takeeffect on 30 April; and by 31 May to take effecton 31 August. These fixed dates mcan that thccolleges have to have completed the process ofstatutory consultation with the recognised tradeunion and with individual staff by a specific date.The college that intends to impose contract changeshould work out a timetable for thc steps it willtake and ensure that it can hit the notice date. Inpractice the two phases of the process will take atleast two terms. Imposed contract change is not a

swift process. It has to be driven by a clear strategicimperative for once a college has decided to imposethe change it cannot withdraw from that decisionwithout altering significantly management/staffrelations. If the management has good reason forthe proposed change, act reasonably and followthe correct procedure any decision will besuccessfully defended if challenged in an industrialtribunal.

A substantial reason

The change has to be needed by the college. Buthow essential does the need for change have tobe? The Employment Protection Consolidation Actrequires the college to be able to convince anindustrial tribunal that the refusal of the employeeto accept the change was a substantial reason fordismissal. There is a belief that the change requiredby the employer has to be needed for the survivalof the organisation. The courts will not apply thatnarrow criterion when they consider whether thereason for the change is a substantial one thatjustifies dismissal. This is well illustrated in the1994 judgement of the Employment AppealTribunal in the case Catamaran Cruisers Limitedv Williams and Others (IRLR 386,1994).

Catamaran Cruisers Limited ran a boat service onthe Thames providing a riverbus and pleasurecruisers. To improve the company's efficiency themanagement proposed a number of significantchanges to employees' terms and conditions. Thesewere discussed with staff and their recognisedunion. New terms and conditions were eventuallyagreed with the trade union and then offered toindividual staff. Most accepted. A few refused thenew terms and those staff were dismissed. Anumber of dismissed staff took Catamaran CruisersLimited to industrial tribunal and claimed unfairdismissal.

The employer claimed that the dismissals had beenfor a substantial reason in that it had a strongbusiness reason for needing contract change andfurthermore it had behaved reasonably. At theindustrial tribunal hearing the tribunal acceptedthe employees' argument that only if the survivalof the business depended on change to theircontracts could a dismissal for refusing imposedcontract change be fair. In the circumstances ofCatamaran Cruisers Limited the business wouldhave survived if the contracts had not been

Mendip Papers I 15 _I

changed, but it would have been substantially lessefficient.

The employer appealed against the decision of theindustrial tribunal that it had dismissed theemployees unfairly. The employment appealtribunal overruled the industrial tribunal stated:

We do not accept as a valid propositionof law that an employer may only offerterms which are less favourable thanthose which pre-existed if the verysurvival of his business depends uponacceptance of the terms.

The employment appeal tribunal ordered theindustrial tribunal to reconsider the case taking intoaccount the benefits to the employer of the changesit required to have made to the employees' contract.

This judgement, however, does not allow anemployer to impose contract change unreasonably.The employment appeal tribunal was careful tostate that:

The fact that the authorities show thatan employer is not restricted, whcnoffering less attractive terms andconditions of employment, to asituation where the survival of hisbusiness is at stake, does not provide anopen door to change ... An employermust demonstrate ... that, if hedismisses an employee for failing toaccept changed terms and conditions ofemployment, his action falls within thebalance of reasonableness.

On the question of the reasonableness of theemployer's action in the ca.se of Catamaran CmisersLimited the fact that the management persuadedthe tradc union and the majority of staff to acccptthe change and it then followed proper proceduresin dismissing the minority of staff who refused toagree to the change helped persuade an industrialtribunal that the management had acted reasonably.

Imposed contract changes: the twophases

The process of imposing contract change can heseen to consist of two phases in the first themanagement aims to persuade staff to accept the

change and then, in the second phase, the changeis imposed. The steps of the two phases are:

Phase 1: persuade

1. Persuade employees of the need for change2. Draft the changes3. Discuss them with staff4. Revise them if there are good grounds for

doing so5. Make a proposal and ensure it is fair and

reasonable6. Give employees time to accept

Phase 2: impose

7. If staff do not accept, inform them thatthey face dismissal

8. Begin consultation with recognisedunion(s)

9. Consult with a view to reaching agreement10. After consultation, dismiss those not

accepting change11. Dismissal with notice and offer of re-

engagement on new terms.

The manager who is considering compulsorycontract change should therefore take the followingkey actions:

ensure that the case for change is strongand strategic;identify the timetable for contract changeand kccp to it:make a genuine effort to persuade staff toaccept the change;follow precisely the proper legal proceduresfor consultation and dismissal.

Note on further reading

This section of the paper has focused on the legalissues underlying contract change that are of keyimportance to the college manager and it hasdeliberately not quoted greatly from the details oflegal cases. Any manager who wishes to go furtherinto the legal background to contract change couldstart by consulting one of the following:

Income Data Services (1993) Employment lawhandbook 55. Contracts of employment.Incomes Data Services Limited

ri-6-1 Mendip Papers

Aikin, Olga (1992) Contracts. Institute ofPersonnel Management

Du-feu, Vivian (1994) Croner's guide tocontracts of employment. Croner PublicationsLimited

Walton, Frank (ed) (1986) Contracts ofemployment. Encyclopaedia of en iployment lawand practice. (2nd ed) Professional Publishing

The college manager and theprocesses of change

Contract change is clearly a matter of law and acentral issue in industrial relations. It is also ofprime concern for middle managers charged withinterpersonal relationships with colleagues. Forthem, the effects of such change may beexacerbated by long periods of uncertainty andambiguity on the one hand, and the need forindividuals to take higher profiles in theirmanagement and trade union roles on the other.The latter will not always be in the formalisedbargaining arena, indeed it is often most stressfulfor middle managers when it is not. It is then whenthey arc not close enough to the top to know whatis going on but they still have to manage thefears of their colleagues. It is difficult to see howa college manager can stand aside from thcprocesses of innovation, however much some maywish to. Participating in the management of changecan be assisted by a recognition of the processesinvolved. This section therefore seeks to brieflytouch upon three dimensions of those processesin ways which are relevant to those charged withsupporting the delivery of contract change. Thefirst endeavours to give a short list of kcy activitiesinherent in reforms; the second explores the scopefor management inputs to the collective process;and thc third gives some consideration to theinteractions of senior staff with individualcolleagues.

Management change processes

A number of texts arc available on the managementof change, reference is made here only to theidentification of six key activities explored byPlant (1987). They point, in general terms, tomeans by which middle managers can seek to

participate in the effective delivery of new termsand conditions.

Ensuring early involvement rather thanadopting a detached air is clearly criticaland calls for engaging with senior as wellas junior colleagues rather than waiting tosee or abdicating any role.

Working :o gain commitment both fromthose negotiating on behalf of the employersas well as lecturers will be called for, thelatter to accept and recognise change andthe former to explore worries and optionsnot already in the negotiating plan.

Avoiding over-organising will tend to comelate in the participation by those chargedwith the delivery of whatever has beendetermined. It will need to be set alongsidesteps to ensure that changes flow.

Providing help in facing up to change cantake a number of forms. It can mean seekingimaginative ways of tailoring productivityrises to fit the needs of individuals withoutcompromising the new terms. It will alsomean seeking ways to counter feelings ofdevaluation.

Communicating continuously, particularlywith key opinion-leaders on both sides, willcall for perceptions about who is listenedto, and when and how to ensure thatmessages are received and understood.

Turning perceptions of threat intoopportunity is seen by Plant as a key elementin managing change. Where colleges canpoint to future growth, a greater degree ofsecurity and/or opportunities to invest in abetter and more effective service as a directoutcome of contract change, there is thepotential to turn arguments for the need intopositive outcomes.

Managing contract change: thecollective response

In turning more specifically to the role of themanager a'S a change agent in relation to thecollege/trade union interface, it is possible toidentify a range of aspeLts where knowledge and

Mendip Papers 17

participation may be important. The followingchecklist brings forward a number of points thathave already been raised and adds others. Someare concerned with th1/4. acquisition of knowledgeand understanding, others with aspects of skill.The catalogue is not comprehensive but then, notall of the issues will be of equal importance. Takentogether however, they provide a betterunderstanding of some of the potentially importantissues in the industrial relations dimension ofcontract change.

Understanding the national-collegerelationshipsThe college is the employer and though itis likely to be a member of the Colleges'Employers' Forum it joined on the basis oflocal determination of policies. In thecurrent round of discussions it has not beenpossible to arrive at joint proposals at thenational level, therefore both sides havemade separate recommendations. Thisdi ffers from the former delegation of powersby the local authorities to the centre and theuse of arbitration to arrive at agreement.

I s management consulting or negotiating?It is for the college to determine whether itwishes to consult or bargain. In the case ofthe former it reserves the right to decidebut seeks advice and opinion before doingso. With the latter both parties are power-sharing and are committed to supportingthe common agreement. Managers need toknow the position taken by their employer,and ensure that it is commonly understood.

Clarity as to empowerment who decideswhat?Part of the confusion sometimes found inconsultation and negotiation is a lack ofclarity about progress in relation to who isempowered to decide what, particularlywhen those debating issues seem to havereached an accord only to find that one sidehas to refer the matter on. On themanagement side it will be necessary to beclear whether ratification is required by thecorporation or its personnel committee. Onthe union side the branch may have to putits recommendations to regional andpossibly national committees. Delays havebeen known to lead to a loss of good faith

and even subsequent change, devaluing theprocess due to a lack of clear understanding.

Discussionicomment on the critical agendaitemsManagers across the college may need toknow of, and participate in the identificationof, key issues, exploration of the range ofoptions, and debate on the collegespreferred outcomes. For example, in relationto the proposed change of contracts forlecturers:

Does the college want all or a proportion tochange?

What is the efficient and effective/deliverable length of the week and year forthree to five years ahead?

Is a case-loading approach preferable to themore traditional class contact measure?

How can/should the pay and grade structurebe changed?

If it is negotiation what is the college' sBATNA?The managers may need to participate indetermining the best alternative to anegotiated agreement (BATNA) before anybreakdown is reached. For this to beeffective, it will need to be known,supportcd and be deliverable by m nagersacross the college.

Identify win-win options and trade-offs ifyou wish to treat others as you would wishto be treatedIf a win-win position is to be achieved itmay be best supported by brainstormingideas among college managers and usingthem as a basis for evaluating options thatthe team can have available.

/dentin, the end-point and work the calendarbackwardsThe point where no decision becomes adecision in itself will relate as much to theoperational practiccs of the college as tothe legal position. On the onc hand, periodsof notice and consultation with therecognised trade unions will generate onecalendar. This has, however, to mesh with

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the operational practices of the college yearif change is to be effected withoutimplementation becoming a majordisruption to the good running of thecollege. Timetabling and marketingdecisions need to be set alongside personnelissues.

Keep up to date with the procedural positionincluding the calendar, the agendas and theoutcomesRumour can be the lifeblood of the collegein a period of rapid change. Middlemanagers are in a prime position tocommunicate but only if thcy keep, and arekept, abreast of developments. It isimportant to be certain of the status ofstatements and observations. Knowingwhen meetings arc being held, what is onthe agenda, whether the minutes are draftor confirmed and who has power ofapproval can be of particular significance.

Know very clearly why! Know what youvalue most, why you are doing it andcommunicate the reasons constantlyWithout reference back to values andreasons, decisions may become tangentialor even in conflict with original intentions.Further, one of the few things that seemcertain in times of stress is that motiveswill be attributed which seem at odds withthose that key players believe they hold.

Restrain the mavericks, and stiffen up theostrichesIn any grou facing issues not met beforethere will be those who take views whichdiffer strongly yet success will call for ahigh measure of cohesion. It can help toknow whether you are perceived by othersas a maverick or an ostrich, and what youthink you might seek to do about it.

Empathise but plan for the expectedresponsesUnderstanding and sympathising does notnecessarily equate with agreeing, thoughthis may not always be recognised in theheat of debate. Empathy can assist inidentifying and preparing for responses butthe manager's position may need to be setout clearly.

Know the college policylrequirements onthe partial performance of workWorking to rule can be bc. an individualand a collective action. Where it is a positiontaken by one colleague it may be resolvedby private discussion. However, where it isthe latter, managers can expect and call fora clear college position. This issue isaddressed again later.

Look for clearl shared definitions andunderstandings of 'agreements' and discussin detail how they are to be implementedIt has not been unknown for long andcomplex sessions to be dedicated tounderstanding minutiae of what has beenagreed, and for equally long periods then tobe given to writing down that agreementonly for different interpretations to ariseacross the college. Managers need to beinformed of and to be able to question whathas been arrived at in terms of the spirit aswell as the technical interpretation of theoutcomes.

Plan ahead, think strategically and avoidknee-jerk reactionsThe conclusion of the formal debate andargument and the drafting on any writtenstatements is only the ending of one phaseand the beginning of another. Interpretationand implementation whilst the issues arestill fresh can be expected to be followed indue course by monitoring and re-interpretation. This should not be seen as acriticism but rather as an outcome of acomplex and on-going process. The veryact of unfreezing and recasting a particularaspect of college practice, particularly oneas important as contract change, maypredispose the organisation to continue withthe processes of collective development. Itis therefore wise to plan ahead for the nextcycle of changes whilst congratulating thosewho carricd the current round through.

Working with colleagues: staffresponses

The third dimension explored here turns to themanager and individual colleagues who can beexpected to display a range of response.; as the

Mendip Papers 19

debate rolls forward. Some colleges anddepartments may expect to experience thesequence identified by Casey (1983), particularlywhere the changes are associated with otherstresses such as budget cuts and job losses.Recognition of the following elements may helpin understanding the current position and preparingfor what may follow:

stage 1: from disbelief:

stage 2: through annoyance;

stage 3: frustration;

stage 4: anger;

stage 5: fear, to

stage 6: cannibalism.

Identification may help staff as well as managersto come to terms with responses that are normalbut disturbing. Colleagues can be expected to feelstrongly, particularly if they consider they are beingdevalued and/or threatened. It is not unknown insuch circumstances for the fear to turn inwardswhen acceptance of the inevitable comes aroundand reaction sets in.

Partial performance of duties is a favoured ploy oftrade unions as well as individuals and working torule has been practised in the past in colleges. Toorarely, however, have colleges made theirexpectations of lecturers clear in advance inrelation to implicit as well as explicit terms of thecontract. Implicit terms arc those which areessential to provide effect to the delivery of thccontract though not sct out in any specific or writtcnform. The Silver Book may not thus specificallyrecord that enrolling students, recording theirattendance or marking their work arc specifiedduties but where colleges have been dependent onsuch provisions they could argue that they areimplied terms. Where this is the case colleges arethen in a position to indicate a possible hierarchyof penalties before staff decide to act rather thanafterwards. It is perhaps unfonunate that clarityonly tends to come through the heat of industrialaction. Line managers arc then charged withidentifying any partial performance in a climateof retaliation when the punishment is seen as ill-fitting an action whose legitimacy is challengedafter the event. lf, as has been suggested, up toone-third of a lecturer's activities is currently

undertaken outside contractually defined times ofthe 30 hour week and 38 week year it may notseem surprising that the new contract seeks tosubsume much of this time. A clearly regulatedorganisation is unlikely to wish to fall back on theinterpretation of implied terms or the long-lostpreamble to the original aational conditions ofservice documentation which made reference tothe recognition of the extended professional role.

What next?

This final section is clearly not the conclusion ofthe processes of change but rather a recognitionthat it will be on-going, as it has been in the past.Whereas the changes used to come from outsidethe college, and the local authority too, theownership is now clearly with the institution. It isdifficult to see how a major structural issue suchas that now under review could have been plannedand prepared for differently by a set of institutionsthat had previously had only limited contact andexperience of industrial relations. That will not bethe case in the future and even before the currentround of changes are resolved it can be arguedthat it behoves colleges and managers to be lookingahead. There is a need now to be looking to 1998and beyond in terms of planning for humanresource management which will underpin thestrategic plan. Few establishments are likely to beof the view that the immediate future offersstability or growth which can underpin the last dotand comma of the current terms of employment ofstaff. Change, even if it is little more than finetuning to the outcome of the present interventions,is likely to be projected. In what areas, how it maybest be effected anu by whom needs to beconsidered in good time in the light of lessonslearnt, for that surely is the very essence of theeducational process.

The scale and pace of modification over the nextthree ycars may be difficult to forecast with anyaccuracy but nonetheless attempts can be made.In general terms the college can explore how ithas responded to date and how it may wish toprepare for the future. It can drift on whatevercurrents take it, and thus shift in response topressures from trade unions or other bodies suchas the CEF or FEFC without taking any seriouspart in exploring direction. Should this seemimprobable it may be as well to remember thatthis has been the position up to now. It is unlikely

20 Mendip Papers

that many, if any colleges, will be able to put theclock back or adopt a tokenist approach of usingthe words but changing little or nothing. In suchcircumstances tne options would seem to be onesof hoping that future changes will be little ones,adopting crisis management or planning efficientlyfor change.

Critical to such forward planning will be corporateviews on the managed pace of change and theintegration and cohesion of the managementposition. One natural response to a big-bang shiftis to let the dust settle and re-assess the newposition. Defending the status quo whereverpossible will turn to matters of detail andinterpretation where the position of the linemanager will be critical. In shifting to a proactiveapproach distinctions can be drawn betweenincrementalism, opportunism and gradual butplanned implementation. The first is seen here asming slow change with one shift building onanother but not always in a consistent direction.Opportunism is more active but often leads to adhoc accretions that may not stand the light ofcollective scrutiny, particularly when adjustmentsmade in one part of the college are seen to differfrom those of others. Gradualism is further alongthe continuum leading to radical change in thatdirection is known and consistent. However, inthe words of Chris G rice of ACAS it is thc processof being able 'to eat the elephant of change slowly'(1993).

A second critical dimension of change to beaddressed by colleges is the balance to be struck

between individual and collective agreements.Colleges have come from a culture based primarilyon a trade unionised workforce with contract termsbeing primarily determined at national level, albeitwith specified aspects set locally within a givenframework. This has become less the case as thecorporation's remuneration committee has cometo terms with the most senior posts, and as seniormanagers change their roles and relationships.Further trade union recognition is not as simpleand clear as it once seemed to be, even if theUNISON merger has done much to rationalise theposition in relation to support staff in colleges.There is a trend, albeit a small one in manycolleges, away from collective bargaining towardsindividual agreements. In at least one instance thisis now not only the preferred but the operationalmodel.

Forward planning will need to consider where,hov., far and how fast change should be pursuednext. In doing so it will be necessary to take accountof the managerial as well as the technical and legalissues. Not only must staff morale be weighed butaccount will have to be taken of the ability,development and load placed on those chargedwith leading and delivering the outcomes. Muchcan be learnt from the learning experiencesprovided by the current round of contract changeissues. From these can come guidelines for thefuture which will need to inform forward planningfor the processes are rarely without stress whichwill call for both firm and sensitive handling. Themiddle manager is a critical partner in the collegetcam in achieving the effective delivery of change.

Mendip Papers,

4.

21]

References

Aikin, Olga (1992) Contracts. Institute of Personnel Management

Becker, S N and D Neuhauser (1975) The efficient organisation. Elsevier Press

Casey, J W (1983) An institution faces contraction in The management of contraction.Coombe Lodge Report volume 15 number 11. Further Education Staff College

Department for Education (1992) Statistics of education further and higher educationstudent:staff ratios and unit costs 1991-92 England. Department for Education

Du-feu, Vivian (1994) Croner's guide to contracts of employment. Croner PublicationsLimited

Fagg, Vicki and John Anslow (1992) Corproate status, the personnel managementimplications: a guide for governors and college managers. Local Government ManagementBoard

Further Education Funding Council (1992) College strategic plans. Circulars 92/11 and92/18. FEFC

Further Education Funding Council (1994) College strategic plans. Circular 94/01. FEFC

Grice, C (1993) Industrial relations, colleges and ACAS in B Kedney (editor) Implementingnew working practices and the college's industrial relations mach inery. Network Training

Income Data Services (1993) Employment law handbook 55. Contracts of employment.Incomes Data Services Limited

National Joint Council for Teachers in Further Education in England and Wales (1981 on)Scheme of conditions of service. NJC

Plant, R (1987) Managing change and making it stick. Fontana

Saunders, R (1993) Job evaluation in the FE corporation Mendip Paper M P050. The StaffCollege

Walton, Frank (cd) (1986) Contracts of employment. Encyclopaedia of employment lawand practice. (2nd edition) Professional Publishing

Ward, R (1993) The draft CEF contract a model for change? in Kedney (ed) Implementingnew working practices and the college's industrial relations machinery. Network Training

F1 1.4Actidip Papers___

Appendix 1: Or :ons for gradual change: resignations, retirements anddismissals

1. Resignations

2. Retirements at 60 or 65

3. Fractional posts, stepping down/job shares

4. ETL ('encouragement to leave')

5. Dismissal on grounds of gross misconduct

6. Dismissal on grounds of incompetence

7. Dismissal on grounds of ill health

8. Retirement on agc grounds

9. Efficient exercise of the service (50+)

10. Efficient exercise of the service enhancement

11. Voluntary redundancy

12. Voluntary redundancy plus efficient exercise

13 Voluntary redundancy plus efficient exercise

14. Compulsory redundancy

Mendip Papers 23

About the Mendip Papers

The Mendip Papers are a topical series of bookletswritten specially for managers in further and highereducation. As managers and governors take on newresponsibilities and different roles they face newchallenges, whether in the areas of resource andfinancial management or in the pursuit of quality,the recruitment of students and the development ofnew personnel roles. The Mendip Papers provideadvice on these issues and many more besides.

Some of the papers provide guidance on issues ofthe moment. Others offer analysis, providingsummaries of key recent research studies or surveys.The authors are experts in their areas and offerinsights into the ways in which the fields of post-school education and training are changing.

Mendip Papers provide up-to-date information onimportant current issues in vocational education

and training, as well as summaries of researchstudies and surveys, along with informed andsometimes controversial perspectives on the issues.Managers need Mendip Papers to keep abreast ofcurrent developments and to deal with key problemsand challenges. Staff development officers andtrainers will find them invaluable as a basis for in-college management training and staff developmentactivities.

The list of Mendip Papers is growing steadily. Ifyou have tackled a particular piece of research orconducted a survey in the fields of further, higher oradult education, or have undertaken an innovativemanagement initiative which would be of interestto other managers, please contact the series editor,Lynton Gray, at The Staff College with a view topublishing your work and disseminating itthroughout the post-school education system.

Titles in the series

Curriculum management

MP073 Putting the learner first: support through flexible learning 1994 £3.50Jean Bolton

MP 071 Learning difficulties and the power of labelling in ABESue Bergin and Andy Johnson 1994 £3.50

MP 060 Explaining non-completion rates in Scottish universitiesAlan Wood ley 1994 £3.50

MP 058 A flexible approach to learning: articulating coursesJ E McLachlan and Vivienne Wood 1994 £3.50

MP 019 Solving the problem of mathematicsSir Roy Harding CBE 1991 £2.50

Further education and vocational education and training

MP 072 Vocational qualifications and SLDD learners awork based learning approachMargaret Levy 1994 £4.00

MP 067 Raising quality in a competitive environment:the Dutch experienceJan Maas 1994 £4.00

MP 066 Raising quality in a competitive environment:the New Zealand experienceMargaret McCall and Bob Willyams 1994 £4.00

MP 065 Raising quality in a competitive environment:the Canadian experienceRobert Gordon and Bill Sinnctt 1994 £4.00

MP 064 Raising quality in a competitive environment:the British experienceGeoffrey Melling and John Graystone 1994 £4.00

MP 056 'Funding learning' and all that: a synopsis of six reportsBob Kedney and Alison Scott 1993 £5.00

MP 047 Prison education's role in challenging offendingbehaviourPaul Ripley 1993 £3.00

MP 046 Preparing and presenting project reports ineducation managementLynton Gray 1992 £3.00

'26

MP 043 Post-16 participation: the success storyDavid Pardey 1992 £5.00

MP 022 Prison education in England and Wales (revised)Paul Ripley 1993 £2.50

MP 011 Essential acronyms in further, higher and adulteducation (revised June 1994)John Graystone and Margaret King

Human resources

1994 £3.50

MP 069 A focus for human resource management in FEAndrew Betts 1994 £3.50

MP 063 Strategic evaluation of staff' developmentJonathan Simmons 1994 £4.00

MP 052 Investors in People in the college context:the Weymouth College experienceCaroline Cheeseman and Anne Tate 1993 £4.50

MP 051 Coping with incapabilityBob Saunders and Bob Kedney 1993 £5.00

MP 050 Job evaluation in the FE corporationBob Saunders 1993 £6.00

MP 040 Power, authority, autonomy and delegation:a discursive journey round some big wordsColin Turner 1992 £4.50

MP 039 Soft-systems methodology: an approach toproblem-solving in the management ofeducationJorji Kowszun 1992 £3.50

MP 037 Job analysis and the 'preparation of job descriptionsBob Saunders 1992 £4.50

MP 035 Leadership and its functions in further and highereducationDerek Marsh 1992 £4.50

MP 033 Motivating staffColin Turner 1992 £3.50

MP 027 Creativity and managementColin Turner 1991 £4.00

MP 013 The role of the new vice-principalChristine Megson 1991 £3.50

3u

Legislation and governance

MP 078 Managing contract changeBob Kedney and Ted Ulas 1995 £5.00

MP 042 Reviewing the college disciplinary procedureBob Kedney and Bob Saunders 1992 £5.00

MP 041 Governance and incorporation: style and strategyBob Kedney 1992 £4.00

MP 038 The effects of employment legislation on collectivebargainingBob Saunders 1992 £3.00

MP 036 Governing corporate colleges (revised)John Graystone 1992 £6.00

MP 032 FE incorporation checklist for managers (revised)John Graystone 1992 £5.00

MP 025 FE funding and delegation schemes an exegesisDavid Atkinson 1991 £4.00

MP 018 Effective meetingsJohn Graystone 1991 £3.00

MP 016 Education reform legislation in the UK: a summaryJohn Graystone 1991 £4.00

Organisational theory

MP 015 Structures fact and fictionColin Turner 1991 £5.00

MP 008 The perception of threat and the reality of declinein organisationsColin Turner 1991 £3.50

MP 007 Organisational cultureColin Turner 1990 £4.50

MP 006 Socialisation into organisationsColin Turner 1990 £2.50

MP 005 Responding to change: the need for flexible collegestructures and practicesColin Turner 1990 £2.50

Planning and marketing

MP074 Strategic planning for adult educationPablo Foster and Bob Powell 1994 £5.00

MP 061 Strategic planning in FE: the impact of incorporationRick Dearing 1994 £3.00

MP 057 Using market research to aid educational decision-makingPeter Davies 1993 £4.50

MP 055 Towards parity of esteem? Marketing Advanced GNVQsPeter Davies 1993 £5.50

MP 049 Academic planning in the corporate collegeAlison Scott, Bob Kedney and Lynton Gray 1993 £4.50

MP 048 The competitive positioning of further educationcollegesAli Bakir 1993 £4.50

MP 031 Establishing customer needs and perceptionsBert Roberts 1992 £5.00

Quality and performance

MP 077 FEFC inspection and the role of the internal nominee 1995 £3.00Malcolm Tipper

MP 075 The industrial and philosophicalorigins of quality assurance 1994 £5.00Edward Sallis

MP 070 A framework for quality managementEdward Sallis 1994 £5.00

MP 059 Equal outcomes equal experiences?Edited by Sue Brownlow 1994 L5 0

MP 045 The Northern Ireland further education qualityassurance surveyGerard Devlin 1992 £.3.00

MP 034 Management and accountability in professional organisationsSociety for Research into Higher Education;editor Dr Helen Brown 1992 £5.00

MP 028 Developing common PIs and assessing effectivenessand qualityPeter Allsop 1991 £3.00

MP 020 College quality assurance systemsEd Sallis and Peter Hingley 1991 £5.50

MP 010 Performance indicators and adult educationPablo Foster 1991 £4.50

MP 009 The National Quality SurveyEd Sallis 1990 £4.50

Resources and technology

MP 076 Value for money case studiesEdited by Bob Kedney 1995 £3.50

MP 068 Learning and technology in the further education sectoreds. Lynton Gray and Ann-Marie Warrender, with acontribution from Sir Gordon Higginson 1994 £4.50

MP 062 Funding flexibilityBob Kedney and Sue Brownlow 1994 £5.50

MP 054 50 or more ways to reduce costs:opportunity analysis and selectionBob Kedney and Trefor Davies 1993 £5.00

MP 053 Designing a college accommodation strategy 1993 £5.50Bob Kedney

MP 044 The management of resource-based learningJeff Cooper 1993 £3.00

MP 029 PCFC funding: the first three yearsTony Jeans 1991 £3.50

MP 021 Accommodation planning one polytechnic'sexperienceMichael Murphy 1991 £5.00

MP 004 Management staff ratios and unit costsBob Kedney 1991 £3.00