‘Can my employer change my contract without my consent?’ remains a commonly asked question by UK employees. Unfortunately, the law governing contracts of employment is not always straightforward to interpret. Below we look more closely at contracts of employment from an employee’s perspective, and specifically at what you can do to redress any contractual changes made by your employer without your agreement.
What is a contract of employment?
In examining the question of ‘can my employer change my contract without my consent?’ we first need to consider the question of ‘what is your contract of employment?’ – and, in the absence of a written contract, how to establish the terms and conditions that govern your working relationship.
The contract of employment is a legally binding agreement setting out the rights and responsibilities of both you and your employer. Typically you will be asked to sign a copy of this contract prior to commencing any new employment.
In the absence of a written contract, you are still legally entitled to a written statement of particulars no later than two months after your employment commences. Although this statement does not constitute a contract of employment, a written statement of particulars must include:
- the names of the parties
- job title or description
- the date when the employment began
- place and hours of work
- how much and how often you will be paid
- holiday and sick pay entitlement
- notice of termination.
Why might my employer want to change my contract of employment?
There are a number of reasons why your employer may want to change the terms and conditions of your contract. There may have been a change in operational or economic circumstances, or your employer may want to reorganise the business, on the basis of which your employer is seeking to make changes to employment contracts affecting contractual terms such as working hours or pay, duties and place of work.
By way of example, if your employer is looking to change how much you are paid, they may seek to cut your basic rate of pay, reduce your bonus or overtime rate, or refuse to give you a pay rise that you are contractually entitled to.
In what circumstances can my employer lawfully vary my contract?
When we look at the issue of ‘can my employer change my contract without my consent?’ we need to consider the circumstances in which an employer can lawfully change or vary your working terms and conditions.
By mutual or collective agreement
The general rule is that a contract of employment cannot be lawfully changed or varied by an employer without the agreement of the employee, either individually or –where the change is likely to affect a number of employees – collectively through a recognised trade union or staff association.
If your employer is proposing to change your contract they should fully consult with you, or any employee representative, to explain and discuss the reasons for the change. Further, where a variation to the contract has been agreed and the changes relate to the main terms and conditions that govern your working relationship, your employer should give you written notification of the change within a month of the change taking effect.
Other variations to the contract can be agreed verbally or in writing, although it is always preferable and advisable for any agreed changes to be recorded in writing.
If you work for an organisation in which a trade union has collective bargaining rights, you may be unable to stop a change to your contract of employment by objecting to it. Bargaining rights mean that the union has the right to negotiate with your employer on your behalf.
By existing contractual provision
In some cases your written contract of employment may contain express contractual provision that allows your employer to make certain changes to your contract without consulting with you. These are known as flexibility or mobility clauses.
A flexibility clause may include a general power allowing your employer to change the terms of your contract without your consent or, alternatively, it can be quite specific. For example, where your job description requires you to carry out various normal day-to-day duties as well as ‘any other duties that are reasonably asked of you’, this provides your employer with the flexibility to ask you to undertake different duties within the general scope of your role.
A mobility clause is designed to give your employer the flexibility to change your place of work. Depending on the nature of the business, your contract of employment may require you to work at one specific site, as well as any one of your employer’s sites across the UK.
Where your contract of employment allows for your employer to make certain changes, these must be within reason and with reasonable notice, for example, you cannot be expected to relocate to a different part of the country at short notice.
New employer, new terms
Where a business changes owner, and your new employer wishes to make changes to your contract of employment you should seek expert legal advice soon as possible as special rules apply in this case.
What can I do if my employer has unlawfully changed my contract?
If your employer has changed your contract without your consent, and you believe the change to be unlawful, what options are available to you?
Employers are under duty to act in good faith and preserve mutual trust and confidence with their employees. Failing to seek consent or authorisation from affected employees prior to making contractual changes risks breaching this duty, giving employees cause to seek legal remedies.
If you are facing a imposed changes to contractual terms, take legal advice as soon as possible from an experienced employment specialist as there are a number of options to consider depending on the circumstances and the nature of the employer’s breach.
For example, if you want to object to a change to your contract, you must make this clear to your employer in writing as soon as possible, explaining the reasons why you don’t agree to or authorise the change. This will constitute a written grievance. You should also ask about the reasons for the proposed change and, wherever possible, suggest a viable alternative. If you don’t inform your employer that you disagree with a change, this may be construed as acceptance of the new terms.
Whilst you can temporarily continue to work ‘under protest’ you will need to make this clear to your employer.
If the issue is not resolved, you may consider further action which could include:
- by claiming damages for breach of contract via the county court
- by claiming an unlawful deduction from wages at an employment tribunal if the change affects your pay.
In extreme situations, a high-risk option could be to resign from your job and claim constructive dismissal, but only if the changes to your contract are significant and fundamental. Needless to say resigning is a last resort and you should always seek legal advice. There are also strict time limits to bear in mind for making a claim to an employment tribunal, typically, three months less one day from the date of when the problem arose.
It is also open to your employer to serve a notice to terminate your existing contract and offer you re-engagement on the new terms, although equally this poses the risk to your employer that you may claim unfair dismissal.
Should I seek legal advice for any unlawful change to my contract?
There is a complex framework of legislation governing employment law rights and responsibilities, not least the law relating to the contract of employment and unilateral variation of contractual terms and conditions.
Securing expert legal advice from an experienced employment law specialist can help you to understand your rights in the workplace, in particular the question of ‘can my employer change my contract without my consent?’.