Legal position on varying contract of employment

One of the most common issues arising in employment law relates to whether an employer can impose contractual changes in the employment contract on the employee.

The short and simple answer to this is no – an employment contract is no different to any other contract in that, once terms are agreed, they can only be varied with the consent of both parties. However, the position is not quite so straightforward in practice, largely due o the unequal bargaining position between the parties.

With employment situations it is quite common for written terms to be varied by day to day events – what was initially agreed may be varied by what happens in pract8ice which then becomes implied into the contract. Perhaps a good example would be a change to what the employee actually does on a  day to day basis, his or her role, or perhaps where there is a set time stated for lunch or other breaks but in reality that is now what happens. So, contracts can be altered by conduct which both sides expressly agree or which simply develop over time.

The above does create risks – even if an employee or for that matter employer are not overly happy about a change in practi9ce, if they simply let it go, then even if there is a technical breach of contract, the legal concept of waiver may well then apply. In other words, there is generally a certain amount of time for a party to refuse a contractual  change either suggested expressly or by conduct. This is particularly important in the context of changes to pay or working hours. If an employer seeks to alter  these fundamental terms, an employee will need to ensure that they do not simply acquiesce in these changes.

A further potential complication arises from the fact that some employers are now including some important employment policies and practices in documents such as staff handbooks which are expressly stated to be non-contractual. In those situations, it may be possible for the employer to legitimately change those policies without employee express consent.

If an employee wishes to take action over an attempt by an employer to unilaterally alter the employment contract, it is worth obtaining legal advice because the type of possible breach of contract will determine the rights available to the employee who wishes to reject the changes.

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