In most cases, employers cannot lawfully change contract terms without first having each individual’s prior agreement, unless the contract allows them to do so under a specific flexibility clause. The flexibility clause, also referred to as a variation clause, being relied on must permit the employer to change the particular term in question.
To ascertain if you have the contractual right to make the change, you will need to refer to the individual’s employment contract. Where a relevant clause is identified, you will need to understand if the wording of the term supports the change and if the term includes any additional provisions or requirements in order for the change to be made, such as giving requisite notice of the variation.
If the wording of the flexibility clause is not clear or does not support the change being proposed, the individual may be able to refuse or challenge the change.
In some circumstances, the change may be implied where the individual has already worked under the new or changed conditions for a significant period, unless they are specifically ‘working under protest’, as we discuss below.
This is a highly technical area requiring specialist legal advice to understand your position in light of previous tribunal rulings and to understand the obligations on you to avoid being subject to a grievance or tribunal claim.
We are business employment law specialists. We have extensive expertise in employment documentation and contracts, including managing processes for change, giving full consideration to the required notice period for changing contract terms and the importance of employee engagement and communication throughout the process.
If you have a question or need advice on any aspect of changing employment contract terms, please contact us.
