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Can employees complain about changes to their employment contract after two years?

1st May 2018

What happens if changes to employment contracts are imposed by the employer and employees make no complaint for two years? Should employees be taken to have accepted the change?

Although this case involves a public sector employer it is as relevant for employers in the private sector.

In March 2011 Nottingham City Council decided not to award annual incremental pay increases to their employees for a period of two years. This was despite the fact that such increases had happened in the past on an annual basis.

During the two year period from March 2011 there was no industrial action (save for a consultative ballot) and no affected employee raised a grievance. When Nottingham City Council implemented an extension of the freeze in 2013, the unions activated a collective grievance procedure and the employees then brought unlawful deduction from wages claims.

The employees argued they were contractually entitled to the annual incremental pay increases and had been so entitled since the original freeze in 2011. This was despite the fact that they had not made any complaint in 2011.

On the other hand, Nottingham City Council argued that because the employees had been silent for two years, it should be inferred that they had consented to the change to their employment contracts. Although they had not signed any documentation consenting to the pay freeze their actions (in not complaining) were sufficient.

Apart from deciding whether there was a contractual right to incremental pay progression, the key issue before the Court of Appeal was whether the employees should be taken to have accepted a change to their employment contracts by working for two years without complaint under the pay freeze.

The Court of Appeal held that the employees should not be taken to have accepted the change. It held, amongst other things, that where the change is wholly disadvantageous to employees, acceptance is less likely to be inferred. This is the case even where employees make no protest over a lengthy period of time.

For employers seeking to make changes to employment contracts, it is recommended that employers obtain specific, documented consent to the change from their employees. There are a number of different ways that can be done and our employment team can help with advice about the law and procedures. This course of action avoids the “make a change and wait and see” approach, which can result in headaches for employers, even several years down the line.

For employees, if changes to your employment contract have been imposed by your employer, we can also help. Even if the changes were imposed some time ago, it is still worth seeking advice from our employment team about your legal position and whether you can object to the change now.

 

*The content of this webpage is for information only and is not intended to be construed as legal advice.

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Morisons Solicitors Jacqueline McCluskey
 

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