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Express or implied agreement to change
[ch 3: pages 95-96]An agreement to a change of contract can be express (for example, through verbal consent or by signing a new contract), or implied by the employee’s conduct. For example, if an employer announces that working hours will change from a 9.30am start to a 9.00am start and the 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 their hours to a 9.00am start — 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 they will be taken to have accepted it and may not be able to challenge it later on. This is not always the case. Tribunals are generally reluctant to rule that a unilateral change has been impliedly agreed to by an employee through their behaviour, where the change does not have immediate effect. For example:
Ms Aparau was given a new contract that said she might be required to move to a different location at any time. She did not sign it but continued to work. The EAT held that where a new term is introduced unilaterally (i.e. without agreement) but does not take effect immediately, a tribunal should be very careful before it finds evidence of implied acceptance.
Aparau v Iceland Frozen Foods [1996] IRLR 119
Tribunals will examine the whole context to decide whether an employee, by their behaviour, has impliedly accepted a contract change. An employee who gets the chance to ask questions or raise objections at the time and who chooses not to do this, or who objects to some changes but not others, may well be found to have accepted the changes they did not challenge, even if the changed terms only become important to the employee at the end of the employment (for example, cuts to redundancy pay).
The fact that an employee has not signed to confirm their acceptance of new contract terms does not prevent those terms being impliedly accepted (Wess v Science Museum Group [2014] UKEAT0120/14/0610).
Contract terms will be taken to have been impliedly accepted if that is the “only sensible explanation”, from the perspective of an outside observer. The fact that privately, the employee did not intend to accept the contract changes is irrelevant, if that is how their behaviour looks from the outside. Here is a good example:
Mr Lacy was offered promotion with benefits that included private health insurance and was given a new contract to sign. The new contract also included restrictive covenants. Lacy did not sign and return his new contract, but he did apply for the insurance.
When his employer later attempted to enforce the restrictive covenants, Lacy argued that since he had not signed and returned the contract, he had never agreed to the new restrictions. The court disagreed. By taking up the private health insurance after reading the new terms and without protesting about any of them, Lacy behaved as if he was accepting the whole contract, including the restrictive covenants. The fact that privately, he did not intend to accept the new contract terms was irrelevant. What mattered was how his behaviour appeared to a reasonable outside observer.
FW Farnsworth Limited v Lacy [2012] EWCH 2830
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).
An employer that changes its name must provide a new statement, which must include the date the employee’s continuity of service began.