Non-contractual changes
[page 54]Only changes to contract terms need to be agreed. Changes to non-contractual working practices, policies and benefits do not need to be agreed and can be made without consent if they are clearly and genuinely non-contractual. However, the fact that an employer has described a particular benefit as “non-contractual” in the terms and conditions is not necessarily the end of the story. Any ambiguity in the employer’s language will be interpreted strictly and against the employer’s interests. For more information about when a policy, procedure or benefit might be considered non-contractual, see Chapter 6.
Even where a change is allowed, the employer should consult and must not act in breach of its fundamental duty not to destroy mutual trust and confidence. When deciding to withdraw a benefit, even if it is described as non-contractual, they must not act capriciously, irrationally or in bad faith ( Horkulak v Cantor Fitzgerald International [2004] IRLR 942).
Special rules apply where a change is made after a business transfer covered by the Transfer of Undertaking Protection of Employment Regulations (TUPE – see Chapter 8).