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Can my employer change my employment contract without my consent?

Apr 11, 2018

An employment contract is a legal agreement between an employee and their employer. There are rules in place relating to changes of any of the terms of the contract. Emilie Gas, Trainee Solicitor, here explains how an employer can change an employee’s contract without their consent.

Contractual right to change the terms of employment

There are certain clauses which if contained in the contract would allow the employer to make changes to the contract without the consent of the employee. These clauses are:

  • Variation clauses;
  • Flexibility clauses; and
  • Mobility clauses.

Variation Clauses

Variation clauses may be contained in the contract allowing employer’s to change a particular term or condition in the contract without the employee’s consent. The clause gives a contractual right to make "reasonable" changes to the terms of employment without the employee's specific consent. This is intended to include minor or administrative matters which do not fundamentally alter the employee's terms of employment. This clause does not give the employer wide powers to make any substantial changes to the contract, and would be narrowly construed by the courts.

Where there is no variation clause in the contract and the employer makes a change without the employee’s consent then this may be a breach of contract.

Flexibility Clauses

Flexibility clauses allow an employer to change the duties of the job without the employee’s consent. These types of clauses can usually be found in a job description along the lines of “along with the main duties you will also be expected to carry out any other duties reasonably asked of you.”

In cases where a flexibility clause is included then an employer can change the job duties of an employee, but this must be within reason.

Mobility Clauses

An employer may change the location of where an employee is required to work where the employee’s contract contains a mobility clause. The clause will allow employer’s to require employees to relocate to a different office.

Changes not authorised by the contract

If the desired change is not authorised by the contract itself, there are three ways in which the employer may vary the contract of employment:

  • Seeking the employee's express agreement to the new terms (either on an individual basis or through a collective agreement which is binding on the employees concerned). Contract law requires any agreed variation to a contract to be supported by consideration. An employer must, therefore, establish that there has been some benefit that has passed to the employee in consideration for a change which has been made to their contract. If the change has elements that are to the employee's advantage, that will be the consideration. It may be harder to establish consideration where the change is all to the employee's detriment.
  • Unilaterally imposing the change: the employer could rely on the employee's conduct to establish implied agreement to the change. If the employee does not wish to accept the change but continues to work within the terms of the varied contract, they should make it clear that they are working under protest and that they do not accept the new terms. Otherwise, the employee is at risk of being held to have impliedly agreed to the change. If the breach of contract is a fundamental breach going to the root of the contract, the employee could resign and bring a claim for constructive dismissal. Alternatively and if possible (for example, in relation to a change to job duties or hours of work), the employee could refuse to work under the new terms.
  • Terminating the employee's employment and offering re-employment on the new terms.

If you have any questions regarding your contract of employment then contact Emilie or the Employment team on 02380 717717 or email employment@warnergoodman.co.uk.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.