Generally speaking, most people these days have some form of written contract. Indeed, by law an employer should provide the basic information about the employment (pay, hours of work etc) in a written statement of main terms and conditions.

Types of Contractual Term

Some contractual terms are "express". They are clear terms recorded in writing such as the location of work or annual salary. Other contractual terms are "implied". This means that the term is something which the parties must be taken to have agreed; for example, because the term is necessary to make the contract workable or due to custom and practice.

It is also possible that terms are incorporated into the individual's contract from a collectively bargained agreement or from a staff handbook.

Changes to the Contract

The basic legal concept is that any contract cannot be changed by one party without the agreement of the other. This is known as unilateral variation.

In the employment law context it is usually the employer that proposes changes. If changes to the contract are made which benefit the employee, the continued performance of the contract by that employee will be enough to signify an acceptance of that change. Think about what happens when you are awarded a pay rise. Generally you will not expressly say to your employer "I accept this change", yet nevertheless the contract is varied.

The situation is more tricky when the change does not benefit the employee. In those circumstances the employer must be able to show consent in some legally acceptable way. (Note however that if the individual's contract is controlled by a collective agreement individual consent is not necessary.)

In relation to an individual contract the law requires individual consent. But what is meant by consent? The question really is whether an employee can avoid giving consent or avoid acquiescing what would be a breach of their contract if it were not accepted by the employee.

Recent case law suggests that it is no longer enough to "work under protest". An employee who purports to be working under protest may nevertheless be found to have accepted the breach to their contract by failing to take any further action.

Also, be aware that a change in the contract, if fundamental, may entitle the employee to resign and claim constructive dismissal; but that constructive dismissal may not be unfair. An employer may be able to put forward a compelling business case for the change to the contract.

If any changes to the contract are made following a TUPE transfer (that is a transfer from one employer to another e.g. after a takeover of a business), those changes are void if "transfer related"; even if freely entered into and/or for the benefit of the employee. The TUPE Regulations are "horribly" complicated. If in doubt, take advice.

Any employee faced with proposals to change his or her contract should seek legal advice as to what rights he or she may have.

If you would like advice about any aspect of your contract of employment please call 0113 2450733 or 01274-745328 and ask to speak to our Employment Rights Department.