A change of Hart – varying an employment contract & the risk of constructive dismissal

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Posted in:HR and Employment|April 13, 2015 | Join the mailing list

Over time an employer may find that the employment terms on which it took someone on are no longer what’s best for the business and the employer may therefore want to make changes to the worker’s contract of employment. But can an employer do that if the
worker doesn’t agree to the changes? What are the risks? 

In the case of Hart v St Mary’s School (Colchester) Limited, the Employment Tribunal found that St Mary’s School wanted to change its time-tabling so that core subjects were taught in the mornings, and the Tribunal also found that this time-tabling change
meant that Mrs Hart, who was a part-time learning support teacher, would see her part-time hours in future spread over five days, rather than over three.

The school entered into consultation with Mrs Hart, but no agreement was reached, and the Tribunal’s judgment records that the school therefore informed Mrs Hart that the change to her employment contract in respect of hours of work would be made nonetheless.
Mrs Hart resigned and brought a claim for unfair constructive dismissal, arguing that the school had breached her employment contract by changing its terms without her consent and with Mrs Hart resigning in response to that breach. The Employment Tribunal,
however, dismissed her claim, stating that Mrs Hart’s contract of employment had not been breached, because it contained a provision allowing the school to vary the contract’s terms.

Mrs Hart appealed against the Tribunal’s decision and the Employment Appeal Tribunal found in her favour. The EAT stated that the variation clause in Mrs Hart’s contract of employment was not sufficiently clear or unambiguous as to allow unilateral variation
of the contract’s terms (that is to say, variation without consent). The school’s unilateral variation of the contract was therefore found by the EAT to be a serious breach of Mrs Hart’s contract of employment and because she had resigned in response to that
breach, she had therefore been constructively dismissed.

The case highlights a number of points that both employers and employees should be aware of.

Firstly, if an employer varies the terms of a worker’s employment and does so without the worker’s consent, then this will be a breach of the contract of employment, unless that contract contains a clause which very clearly states that the employer is allowed
to make such a unilateral variation.  

Secondly, if there is no such clear and unambiguous clause allowing unilateral variation, then the employer should try to agree the amendment with the employee and should do so before putting the desired change into effect.

Thirdly, if the employee refuses to agree to the change in their terms of employment, then simply pushing ahead with the change nonetheless will give rise to a risk of the employee resigning and claiming in the Employment Tribunal that they have constructively

Fourthly, in the absence of a clause clearly allowing unilateral variation and in the absence as well of the employee agreeing to their contract of employment being varied, the employer needs to engage in a process of formal consultation with the employee
about the proposed change in their contract. If that consultation still leads to no agreement, then the employer may need to take the step of giving the employee notice of the termination of their existing contract of employment and offering them re-engagement
under a new contract, containing the desired new terms. Such a step will still involve the risk of the employee claiming unfair dismissal, but provided the employer had good reason for wanting the new employment terms to be brought into effect and provided
also that the employer followed a fair consultation process before taking the step of terminating the old contract, then the unfair dismissal claim is one which the employer should be able to defend successfully.                       

Changing an employment contract without employee consent is always something which should be approached with caution by employers and it’s worth taking specialist advice before acting, so as to assess and, if possible, minimise, the risks involved. If, as
an employee, you find yourself in consultation with your employer about changes being made to your employment contract and those changes are not to your liking, then again there are a number of factors which you need to consider and again taking specialist
advice is always a good idea. 

For more information about any of the above or for practical commercial advice on this or any other aspect of employment law, please contact
Kim Freeman-Smith of the Berg Employment Team on 0161 833 9211 or email her at

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(The information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by Berg or any of its partners or employees. Professional legal
advice should be obtained before taking, or refraining from taking, any action as a result of this article.)

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