Breach of contract 


If the employee does not agree to proposed changes and the employer goes ahead and changes them unilaterally, then in the absence of a valid flexibility clause (see page 78), this is generally a breach of contract. The employee can do a number of things in response:


• accept the change;


• refuse to work under the new terms — it is then up to the employer to decide what to do;


• 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 there is a fundamental difference in the terms); 


• resign and claim constructive dismissal (only if there is a fundamental breach of contract); or


• consider whether the change is valid under TUPE (see Chapter 12). 


Each of these courses of action are challenging and require careful legal advice. In general, objection to contract terms is much more likely to succeed if it is organised on a collective basis through your union. For more information on bringing an unfair dismissal claim see Chapter 10: Dismissal.


Employees who carry on working following a breach of contract are likely be taken to have accepted the change and to have waived their right to pursue a breach of contract claim (Selectron (Scotland) Ltd v Roper [2004] IRLR 4). If they wish to challenge the breach, it is important to make it clear that they do not accept the changes, and to act very quickly in getting legal advice and in pursuing a 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. 


To maintain their position of objection, at the very least employees should regularly renew their objection, for example, on each pay day (Burdett-Coutts v Hertfordshire County Council [1984] IRLR 91). The longer any delay, the more likely a tribunal is to conclude that the change has been accepted by implication. Collective legal action, for example, multiple claims for unlawful deduction of wages in the employment tribunal or for contract breach in the civil courts, may be necessary.