Contract changes 





Employers should never make contract changes without consulting either the union, other employee reps (if there is no recognised union), or the individual employee. 





Contract terms can only be changed by agreement. Where a union is recognised, agreement should be reached through the negotiating process known as “collective bargaining” (see Chapter 5). 


Sometimes an employer tries to impose changes unilaterally by relying on a contract term that purports to allow reasonable future changes to contract terms without employees’ consent. This kind of term might state, for example, that “the employer reserves the right to make reasonable changes to the contract terms”. To be enforceable, the language used must be very clear and the employer must act reasonably. There is more detailed information about challenging changes that rely on the use of this kind of term on pages 77-79, with some examples from decided cases. 





Where an employer proposes major changes to the terms and conditions of 20 or more employees at one establishment within a 90-day period, the obligation to consult collectively under the Trade Union and Labour Relations Consolidation Act 1992 (TULRCA) is triggered. Where a union is recognised, consultation must be with the union. Failure to consult collectively will result in liability for a protective award (GMB v Man Truck and Bus UK [2000] IRLR 636). See Chapter 11 for more information. 





One tactic that employers sometimes use to impose unwelcome changes to contract terms is known as dismissal and re-engagement. This is where the employer ends the employment contract, while simultaneously offering new replacement contract terms containing the desired change. An employer that engages in this practice is not in breach of contract provided they give full legal notice to end the contract (Kerry Foods v Lynch [2005] IRLR 680). This is because by giving notice, the employer is complying with the contract, rather than breaking it. Even so, there is still a dismissal, and employees with at least two years’ service (one year in Northern Ireland) will be able to claim unfair dismissal (see Chapter 10, page 353). 





An employee’s acceptance of a change of contract can be express (for example, through verbal agreement or by signing a new contract), or implied by conduct. For example, if an employer announces a change in start time from 9.30am to 9.00am and employees come in at 9.00am the next day and carry on coming in at 9.00am without objecting, this creates an implied agreement to change the start time to 9.00am, even if they have not said “yes” or “no” to it.





It is important that employees are made aware that failure to oppose a change could mean that they will be taken to have accepted it and may not be able to challenge it later on. 



Tribunals are generally reluctant to rule that an employee has impliedly agreed to significant unilateral contract change through their conduct (or through their failure to object), for example, continuing to work without protest, especially if a change does not have immediate effect, such as a mobility clause, or changes to a redundancy payment. Here is an example:


Tribunals must examine the whole picture to decide whether an employee, through their behaviour, has impliedly accepted a contract change. An employee who does not take up an opportunity offered by the employer to ask questions, or raise objections about a change at the time, or who objects to some changes but not others, may well be found to have accepted any changes they did not challenge, even if they only impact the end of the employment (such as changes to notice or redundancy pay). 


The fact that someone has not signed to confirm acceptance of new contract terms will not prevent a tribunal concluding that the new terms have been impliedly accepted by conduct (see Wess v Science Museum Group [2014] UKEAT/0120/14/DM).


The more disadvantageous the change, the less likely a tribunal is to rule that the employee impliedly accepted it by keeping quiet and carrying on working (Abrahall v Nottingham City Council [2018] EWCA Civ 796).


Similarly, the more unequal the balance of power between the employee and the employer trying to impose the change, the less likely a tribunal is to rule that the employee impliedly accepted the change by carrying on working without objection. 


The employer’s own behaviour when implementing the change can be important. An employer who gives staff the impression that they have the legal right to impose a change to terms and conditions without staff agreement is unlikely to succeed in persuading a tribunal that employees impliedly accepted the change, since they were led to believe that their acceptance was not needed (Abrahall v Nottingham City Council [2018] EWCA Civ 796). 





Contract terms will be taken to have been impliedly accepted if that is the “only sensible explanation”, viewed from the perspective of an outside observer. The fact that privately, the employee did not intend to accept contract changes is irrelevant. Here is a good example:


Sometimes collective resistance (such as balloting for industrial action) will be accepted as evidence that employees did not accept a change even if individually, they carried on working: 


If contract terms change, the employer must issue a new written statement of employment particulars detailing the changes within a month (section 4, ERA 96) — see page 73. 





An employer that changes its name must provide a new statement which must include the date the employee’s continuity of service began.