You did, You didn’t, You did, You didn’t

WynLewis

Varying terms and conditions of employment can be a risky business.
How often have you, as an employer, wanted your employment terms and conditions to be just a little bit different?

How often has this wish led you to decide that you needed to change those terms and conditions, but were concerned about how to go about doing it effectively?

Faced with this situation, some employers just “do it” and see what happens. It’s not a particularly bad ploy if the changes are modest; and it’s quite useful if you have a “we can change your terms and conditions” provision in your contracts. The reason is that if nobody objects to the change before or after their next salary has been paid, you’ve got a good chance that it will stick.

But you won’t want to do this if the change is more significant and involves something that isn’t clearly a policy that can be modified on notice and at your discretion. The reason is that you can get legacy claims crawling out of the employment woodwork many years after a change has been made – when you thought you were home and dry on the variations front.

Not being home and dry, but up the creek and wet without a paddle, can be damaging for the bottom line and does no good for staff relations either.

The reason is that, strictly speaking, any change to a contractual provision (no matter how small, and even though you have a “we can change your terms and conditions” provision in your contracts) requires consent. And if you don’t have consent, then the person who hasn’t agreed to the change can insist on the original version applying.

Subject, of course, to a wrinkle: an employer can also make it clear that a change – one that ought to require consent – will be regarded as effective unless an employee specifically objects to it.

This little wrinkle was the subject of the recent case of Wess v. Science Museum Group, when Mrs Wess failed explicitly to object to a reduction in her notice entitlement from 6 months to 12 weeks and was then dismissed approximately 9 years after the reduction in notice was first notified to her. The Employment Tribunal held she was, indeed, entitled only to 12 weeks’ notice after all – because not only had she not objected to the change in her notice entitlement, she had also objected and assented to other (unrelated) changes that had been made at the same time.

So: if you want to make a change and it’s more than a small one, either get agreement; or notify people of that change and cross your corporate fingers to see what happens; or make a few changes and see which ones are objected to. But don’t just sneak in a big change, because the difference between the old and the new terms may come back to bite you.