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Changes to Terms and Conditions

This page covers the reporting of ascene, short and long term sickness absence, sick pay and returning to work.

Changes to Terms and Conditions

It is highly likely that an employer will, at some time during the employment relationship, wish to change the terms and conditions of an employee or group of employee’s working arrangements. For example changes to sick pay schemes.

This page concerns changes to terms and conditions for individuals only.

How is the change to the contract made?

Variation Clauses

An employer can try to vary aspects of the contract without the consent of the employee by including an express term in the employment contract known as a variation clause. This can provide possible flexibility to make changes to the employee’s contact.

A variation clause may not be effective and can mislead employees into assuming that all changes are permissible.

Lack of Valid Variation Clause/Agreement

If there is no variation clause within the contract or it can be argued any variation clause is invalid, or the employer imposes a unilateral variation (by imposing the change), without consulting and agreeing the change with employees, this can amount to a breach of contract.

Unfortunately, an individual is not permitted to bring a breach of contract claim in the Employment Tribunal whilst they are still employed. We do not advise employees to resign from their post. There are options available to those affected by an employer trying to change terms of the contract, which are detailed below.

How does the process work?

It is best practice for the employer to meet with the affected employee and discuss the proposed changes and agree a way forwards. The employer is required to give notice of when the proposed changes will become effective thereby giving the parties’ time to consider their positions on the change.

The following options are available (click to expand):

1. Accept the changes

After considering their position an employee may wish to accept the changes proposed by the employer. The individual can simply continue to work under the new terms, they will be considered to have accepted the new terms (or have accepted the breach).

There is no requirement to sign a new contract to show that the employee has accepted the terms. By continuing in the employment this will be sufficient and they will be deemed to have accepted the changes if there is no protest to the contrary- either by the individual or the Union.

2. Work under protest

Another option available is to work to the new terms of the contract and maintain the status quo. In these circumstances the employee should make their employer aware that they are working under protest for example by raising a grievance.

It would then be for the employee and employer to meet and try to negotiate a way forward which is agreeable to both parties.

If the grievance process and negotiations are exhausted then an Employment Tribunal claim may need to be considered. The employee could then have the following options:

  • If the change is sufficiently fundamental continue to work but bring an unfair constructive dismissal claim relying on the old contract terms.
  • Make an unlawful deduction of wages claim, if the change results in a reduction in pay,
  • Claim breach of contract in the civil courts and quantifiable damages for losses suffered arising from the breach.

An employee is not permitted to bring a breach of contract claim in the Employment Tribunal whilst they are still employed.

3. Refuse to Accept the Changes

It is open for the employee to refuse to work the implemented changes. This may have repercussions and it always best to seek advice from your GMB representative before an employee takes this step.

If this is not possible and an agreement cannot be reached an employer may move to terminate the employee’s contract of employment and offer new employment on the new terms and conditions. If an employer terminates a current contract of employment in this way, it will amount to a dismissal.

Providing the employee affected meets the requirements of at least 2 years continuous service and is an employee they could potentially pursue a claim of unfair dismissal in circumstances where the changes to the contract are detrimental.

The usual law applicable to unfair dismissal would then come into play.

4. Resign and Claim Constructive Unfair Dismissal

The final option available to an employee would be to resign and claim constructive unfair dismissal.

This would be the last course of action once all other avenues had been explored. In order to claim this, the employee must have two years continuous service. In a constructive dismissal cases are particularly difficult to win, the individual must be able to show:

  • There was a fundamental breach to their employment contract (breach that goes to the very root of the contract),
  • The employee resigned due to the breach,
  • There was no delay in resigning from the breach (otherwise accepting the breach can be argued)

These claims are not straight forward and before any employee takes tis step they should seek advice from their GMB rep.


Time limits

There are strict time limits in which to bring claims in the Employment Tribunal. You have just three months less one day to start a claim.

If you are unsure about any aspect of employment law then you can refer to our other UnionLine employement rights pages - in particular the one on the issue of Limitation in Employment cases. You may also want to seek specific advice from your GMB Region in the first instance.

The purpose of this advice page is to give an overview of some of the rights that are available to you, however this is no substitute for specific advice which you can obtain from your GMB Trade Union Representative.

 
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