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MoreSometimes Employers want to change an Employee’s terms of employment (‘Contract’).
A Contract consists of express terms, that have been explicitly agreed between the parties, and terms that are implied, for example through custom and practice or Statute.
A Contract can only be amended in accordance with its terms or with the agreement of the parties. Not all changes require the Contract to be amended, some are just changes in practice.
Some terms are not part of a Contract, for example, benefits that are stated to be non-contractual and “policies”. Although a policy can become contractual through custom and practice.
There may be a contractual right to vary the terms of the Contract. However such ‘flexibility clauses’ are given restrictive interpretation by the Courts.
If an Employer is proposing to alter an existing Contract and there is no contractual right to make such a change, the Employer could:
An Employee’s refusal to agree to a change to its Contract will usually amount to ‘some other substantial reason for dismissal’ and may be deemed a ‘fair reason’ for dismissal if the Employer can show there is a sound business reason for the change and that it acted reasonably by following a fair procedure. An Employment Tribunal will look at factors such as whether the Employer consulted with the Employees over the change with a view to getting their agreement, the reasons why the employee rejected the change and whether the majority of Employees accepted.
Before making changes to an Employee’s Contract it is important to take professional advice to take steps to avoid an Employee being able to make a claim.
Audrey Spencer, Associate & Head of Employment
For any further advice, please contact a member of our Employment Team at our Poole Office on 01202 725400 or Dorchester Office on 01305 251007.
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