Breach of contract 





If the employee does not agree to proposed changes and the employer goes ahead and changes them unilaterally, this is likely to be a breach of contract. However, it is very important to check the written contract terms carefully, especially any contract term which may allow the employer to impose the change (see pages 77 and 88). Where contract changes follow a TUPE transfer, special considerations apply (see Chapter 12, page 456).




The employee can do a number of things in response:


• accept the change, or continue to negotiate a basis on which it could be accepted;




• refuse to work under the new terms, leaving it up to the employer to decide what to do (this could include dismissals, as well as offers of re-engagement on the new worse terms — see Chapter 10);





• object to the new terms but carry on working under them while taking legal action (only if there is no delay);





• carry on working but treat themselves as dismissed and claim unfair dismissal (only if the two sets of terms and conditions are fundamentally different, so that they are, in effect, a new job);




• consider whether the change is discriminatory (see Chapter 7); and





• resign and claim constructive dismissal (only if there is a fundamental breach of contract — see Chapter 10).



Each of the above courses of action is challenging and requires careful legal advice, remembering that tribunal deadlines are very short. 


In general, objections are more likely to succeed when organised on a collective basis through a union and backed up by the threat of industrial action (see Chapter 6), and/or through union-backed litigation. This might take the form, for example, of multiple claims for unlawful deduction of wages in the employment tribunal, or for contract breach in the civil courts. There are many examples of this kind of challenge, supported by trade unions, in this guide. 





Employees who carry on working after a contract breach risk being taken to have accepted the change and to have waived their right to pursue a breach of contract claim (Solectron Scotland Ltd v Roper [2004] IRLR 4). If they want to challenge the breach, it is important to make it clear that they do not accept the changes, and to take urgent legal advice on any possible claim. If employees are not immediately aware that there has been a change, they should protest as soon as they become aware of it. As explained above, employees can inadvertently accept a change to contract terms by their actions or failure to act.