Your employment contract sets out the terms on which you have agreed to work for your employer. But what happens when your employer suddenly wants to change those terms?
Perhaps your hours are changing, your pay is being reduced, your place of work is moving, or you are being asked to take on substantially different duties. If you have been told that the change is happening whether you agree with it or not, you may quite reasonably be asking: can my employer change my contract without agreement?
In most cases, an employer cannot simply change an agreed contractual term without agreement. However, there are circumstances where an employer may have some ability to make changes, so the precise wording of your contract and the circumstances surrounding the proposed change matter.
What counts as an employment contract?
An employment contract is more than just the document you signed when you started work. Contractual terms can be written down, agreed verbally or, in some circumstances, develop through established workplace practice.
Your written statement of employment particulars should set out important terms such as your pay, working hours, holiday entitlement and place of work, but other contractual terms may appear elsewhere, including in a job offer letter, employee handbook or collective agreement.
This is important when an employer says, for example, "your contract doesn't say you can't do this". The question is not necessarily what is or is not contained on one particular document, but what the actual contractual terms are.
Can an employer change your contract without permission?
As a general rule, contractual changes need to be agreed by both employer and employee.
An employer is perfectly entitled to propose a change. There may be legitimate business reasons for doing so, such as restructuring, changing working practices or responding to financial pressures. But proposing a new term and imposing one are two different things.
Employers should explain what they want to change and why, and properly consult affected employees. If agreement is reached, the change should be confirmed in writing. Changes to main terms of employment must be put in writing within one month.
What if there is a flexibility clause?
This is one of the main exceptions employees need to be aware of.
Some employment contracts contain a flexibility clause, sometimes called a variation clause. This may allow an employer to change particular terms in specified circumstances. For example, a contract might allow working hours or the employee's place of work to be changed within certain limits.
However, a flexibility clause does not necessarily give an employer a free hand.
Acas guidance makes clear that flexibility clauses should only be used to make reasonable changes. An employer may be acting in breach of contract if it relies on such a clause to introduce an unreasonable change, fails to provide reasonable notice or does not properly consult about the proposed change.
So, if your employer points to a clause in your contract and says "we can change this whenever we want", don't automatically assume that is the end of the matter. The wording of the clause and the change being proposed need to be considered together.
What if you don't agree to the change?
If you do not agree, your employer cannot necessarily force you to accept the new terms. However, refusing a proposed change does not automatically bring the matter to an end either.
Depending on the circumstances, an employer might continue discussions, negotiate an alternative arrangement or consider other legal options. In some situations, employers have attempted to terminate existing contracts and offer continued employment on new terms. This is sometimes referred to as "fire and rehire" and is subject to important legal protections and procedures.
If an employer simply imposes a significant contractual change, there may be a potential breach of contract. If the change involves reducing wages, there could also be an issue concerning an unlawful deduction from wages.
A particularly serious contractual breach may potentially contribute to a constructive dismissal claim if the employee resigns in response. However, constructive dismissal is a complex area of employment law, and resigning without taking advice first can carry significant risks.
Read: What should you do if you've been unfairly dismissed?
Can you work under protest?
Sometimes an employee wants to challenge a contractual change but does not want to stop working or resign.
One possible approach is to continue working while making it clear that you do not accept the change and are working under protest. This can be important because simply continuing to work under new terms without objecting may, depending on the circumstances, be treated as acceptance.
If you disagree with a change, it is therefore sensible to put your position in writing rather than leaving matters unclear.
The appropriate response will depend on the particular circumstances, so if the change is significant, professional advice should be considered before deciding what to do.
What should you do if your employer wants to change your contract?
Don't feel pressured into immediately signing a new contract.
Take time to compare the proposed terms with your existing contract and work out exactly what is changing. A seemingly minor alteration to working hours, pay or location can have a significant practical effect on your life.
Ask your employer why the change is being proposed and whether there is room for negotiation. Keep copies of the existing contract, the proposed new terms and relevant emails or letters.
If you are a member of a trade union, you may also wish to speak to your representative.
Most importantly, if your employer is threatening to impose a substantial change, reduce your pay or dismiss you if you refuse to agree, obtain legal advice before taking a significant step such as resigning or refusing to comply.
Get advice about changes to your employment contract
There is no single answer to the question "can my employer change my contract?" as the answer depends on what your existing contract says, what your employer wants to change, whether you have agreed to the change and how your employer is attempting to introduce it.
At Fonseca Law, our employment law solicitors in Ebbw Vale, South Wales, can advise employees who are facing proposed changes to their employment contracts.
If your employer has presented you with new terms or told you that your working arrangements are changing, we can help you understand where you stand and what options may be available before you decide how to respond.