Can a Contract of Employment be Changed?

15 January 2015

Maxine Orr, Solicitor, considers the legal implications when making alterations to a Contract of Employment

A contract of employment, like any other contract, cannot be altered by either the employee or employer without agreement of both. However employers often find themselves in the position that they need to amend contracts of employment and a common amendment is a salary increment which would obviously not be objected to.

A recent case considered whether or not an employee had accepted a change in the contract which occurred 9 years previous and to which she has not objected when she has been issued with the new contract.

Ms Jane Wess was employed as a Senior Curator for the Science Museum Group.She was initially employed on Civil Service terms and conditions. There was restructuring of the roles in 2003 when she was offered a new lower grade position as Curator of Science. She was provided with an entirely new contract of employment document which contained a reduced notice entitlement from six months to 12 weeks.Ms Wess’s contract of employment was terminated by reason of redundancy on 27 November 2012.

Ms Wess did not sign the new contract at the time in 2003 however she also did not state that she objected to the different terms in relation to notice period. At the time she did however appeal against the grading of her new role which led to it being regarded and the title changed to that of Senior Curator. When she was made redundant, she issued proceedings for unfair dismissal and breach of contract/wrongful dismissal. The breach of contract claim was for 6 months’ notice pay based on her old contract prior to 2003.

The redundancy was held to be fair. The Employment Tribunal stated that “although the Claimant had not signed any contract, equally at the time she had not indicated that she did not accept its terms and therefore worked under the new terms until her dismissal”. The question before the Tribunal was whether or not the Claimant had accepted the variation of her contract of employment and the Employment Tribunal considered that the Claimant was intelligent and well educated and had been actively involved with her trade union for a number of years and was well aware of the new terms of conditions and if she had not accepted them at that time the onus was on her to have made that clear. The fact that she did not make that clear was indicative of the fact that she accepted and agreed to the variation.

She appealed to the Employment Appeal Tribunal where she argued that she had never signed the contract and relied on the fact that she had originally written to accept the new position on the understanding that the previous terms and conditions would remain the same. The employer argued that on 17 March 2003 she had been issued with a new contract, which replaced the old contract that she had been given 24 years previously.She had been asked to sign and return a copy of the contract and a number had been given to her to contact if she had any queries. She did not do so. The covering note asked her to read the content of the new contract carefully and the last page made it clear that the job description formed part of her new contract of employment. She had not objected to the new terms and conditions and after nine years it was not open to her to accept one part but object to the others or remain silent on another part for nine years before raising any objection. It was accepted that delay of itself can be neutral as to whether or not an employee is said to have acquiesced in an employer’s unilateral breach of a contract of employment.For example, if the change does not have an immediate, practical impact upon the employee, why should they raise a challenge? The case related not to one minor unilateral change of the contract of employment, it involved the introduction of an entirely new contract. The Employment Appeal Tribunal did not hold the Claimant’s claim for wrongful dismissal.

Maxine Orr is a Partner in Worthingtons Commercial Solicitors Belfast specialising in employment law.

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