Valid consent
[ch 2: page 25]If the relevant information about the change has not been provided, even where some employees appear to agree to the change, they may be able to subsequently argue that consent was not validly given. Where an employer provides employees with no real alternative (i.e. “agree to the changes or be dismissed”), employees may be able to show that they only agreed under duress and that the changes are therefore void (Sheet Metal Components Ltd v Plumridge [1974] ICR 373, Darby and Still v Law Society of England and Wales UKEAT/0447/07, Saminaden v Barnet Enfield & Haringey NHS Trust UKEAT/0018/08).
If employees notify their employer in writing at the time that they have been put under such pressure or include the words “under duress” next to any signature on a new contract, they may make it easier to subsequently establish that improper pressure was brought to bear on them (Hepworth Heating Ltd v Akers EAT/13/02/MAA). Employees who object to a variation should regularly, perhaps at each pay day or once a month, record their protest (Burdett-Coutts v Hertfordshire County Council [1984] IRLR 91). Failure to continue to object may lead the employer to argue that consent was implicitly given (Bainbridge v Circuit Foil (UK) Ltd [1997] ICR 541, GAP Personnel Franchises Ltd v Robinson UKEAT/0342/07).