Non-contractual changes

Only changes to contract terms need to be agreed. Changes to non-contractual working practices and policies do not need to be agreed, although there should always be proper consultation.

Changes to benefits that are clearly and genuinely non-contractual can be made without consent. 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.

Also remember that the employer must not breach the fundamental duty of mutual trust and confidence when deciding to withdraw a benefit, even if it is described as non-contractual and must not act capriciously, irrationally or in bad faith (Hornulak 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). In some circumstances, a claim can be brought under TUPE even through the change is not a breach of the employment contract (see regulation 4(9) of TUPE 2006, discussed in Chapter 8). Bear in mind, however, that the government intends to change this feature of TUPE when it publishes new draft TUPE regulations.