You may find yourself in a situation where your employer may wish to vary the terms and conditions in your contract of employment. For example, if there is an economical change to your employer’s business or if your employer is reorganising the business, your employer may want to vary your employment contract to make changes to your pay, hours and/or days of work, duties, and place of work or supervisory relationships.
This guide sets out the steps your employer must take if they are considering varying your contract terms, and what rights and protections you have as an employee under such circumstances.
Do I Need My Contract In Writing?
Quite often, employees may not have a written contract of employment. In these circumstances, your employment contract may be based on what are known as implied terms.
Implied terms are contractual terms that are not set out in writing. Instead, they will be taken to exist because they have been in place over a particular period of time. A very basic example may involve a worker who has been working 9 am to 5 pm for a period of twenty years. Generally, these hours of work will be taken to be the employee’s contractual hours even though this may not be set out in writing.
Your Employer's Obligations
If your employer intends to vary the terms in your contract of employment, he/she should consult with you or your representative and explain the changes as well as the reasons for the changes.
As a general rule, your employer should seek your agreement to any change in your contractual terms. If you are not agreeable to this change, then your employer may seek to impose the change. An employer will be required to have a strong business case in order to vary your contract without your agreement.
Proposed changes to your contract may be made individually, for example between you and your employer, or through a collective agreement between your employer and your trade union or workforce representative.
What If My Contract Allows My Employer To Make A Change?
Some contracts of employment may contain flexibility clauses which may give the employer the power to vary the terms of your contract. Your employer will have to act carefully and reasonably before exercising these types of clauses. For instance, it would generally be seen as unreasonable for an employer to reduce your hours of work from five days a week to four days without your consent.
The likelihood is that the employer will not be able to simply point to a clause in your contract that allows them to change your terms. Your employer will still need to show that they have acted reasonably in putting the change in place.
Your Options As An Employee
If you are happy with the changes proposed by your employer, you may accept the changes and commence working under your new terms and conditions. We strongly recommend that you seek independent legal advice from our specialist employment lawyers before agreeing to changes proposed by your employer, especially if these include fundamental changes.
If you are unhappy with the changes proposed by your employer but you start working under the new terms and conditions, through your conduct, you may imply that you have consented to the changes by your employer.
Where you feel like you have no option but to work under the new terms and conditions, you may want to make it clear to your employer that you do not agree with the variation of your contract. This is known as ‘working under protest’. This approach could leave it open for you to issue a breach of contract claim against your employer at a later point.
What if You Disagree With The Proposed Changes?
If you do not agree to the changes proposed by your employer, you should speak to your employer and raise your concerns. There are several different types of claims available:
- Formal Grievance. If you are unable to resolve the issues, you may wish to use the company’s grievance procedure to raise a formal grievance. If your company does not have a formal grievance procedure, you may wish to use the ACAS Code of Practice.
- Constructive Dismissal Claim. If you leave as a result of the changes implemented by your employer and these changes are significant or fundamental, provided that you have the qualifying length of service, you may be able to resign from your employment and claim constructive dismissal. This particular course of action can often be seen as a last resort for employees. If you are thinking about bringing a constructive dismissal claim, you should seek advice from an employment lawyer.
- Breach of Contract Claim. Where you are unhappy with the changes implemented by your employer, you may wish to use the civil courts to bring a breach of contract claim against your employer. This may be an appropriate course of action where you have suffered an obvious financial loss, e.g. where your employer has cut your rate of pay. The courts will need to determine whether your employer has breached the contract, and if so, determine the level of damages, if any, payable to you for this breach. This type of claim could also be brought before an employment tribunal as well.
- Unlawful Deduction from Wages. In the case that the change implemented by your employer results in a reduction of your wages, you may be able to bring a claim for unlawful deduction from wages. Before bringing such a claim, you should inform your employer that you do not agree with the changes, and that you will be seeking to take action. This type of claim should be issued at the employment tribunal. It is very similar in nature to a breach of contract claim.
When Should You Request Changes To Your Own Contact?
If you are unhappy about your pay or your working conditions, you may wish to vary your contract to request additional holidays or flexible working due to your domestic commitments. If this is the case, you should have a meeting with your employer and set out the reasons for your request to vary your contract. In the case of changing your hours of work, you may wish to consider issuing a formal flexible working request.
How Can Simpson Millar Assist You?
Our experienced employment lawyers can provide you with advice and assistance if your employer is seeking to vary your contract or has already varied your contract without consulting you.
If you find yourself in either of these situations or you have general queries about your contract of employment, please do not hesitate to contact one of our specialist employment lawyers who have extensive knowledge and experience in this area.