It may be that a company does not have the right to implement the change it wants under the existing terms of employees' contracts, and it cannot get employees' agreement to a change. In these circumstances, the company may decide, as a last resort, to impose the change and see what happens.
If it decides to take this route, the company will need to bear in mind the potential practical repercussions as well as the legal ones. Imposing change may damage the goodwill between the workforce and the company, so leading to loss of productivity. It could also lead to serious industrial relations problems or even industrial action.
If a company imposes change and employees work on without protest, the company could argue that, by their actions, the employees have shown that they accept the changed terms. In practice, employees often accept imposed change because they are unaware that they have any right to resist it or because they feel unable to enforce their rights.
From a legal perspective, the fact that employees have worked on without protest does not necessarily prove that they have agreed to the change. It depends on the nature of the change. If the change has an immediate practical impact, such as a cut in the employee's rate of pay, and the employee continues to work without objection, then he or she may well be taken to have implicitly agreed to the change. However, the situation is different if the change has no immediate effect - as, for example, where the company has imposed a clause requiring the employee to accept relocation but has not yet used it. The fact that the employee has not expressly rejected the new term does not necessarily mean that he or she has agreed to it.
In the hope of avoiding this uncertainty, a company might consider telling employees that, if they turn up to work on the day after the change has been imposed, they will be taken to have accepted it. There are drawbacks to this approach. Employees could turn up to work but still make clear that they reject the change. Or they could resign and claim constructive dismissal. They might then be able to bring one or more of the legal claims outlined below (Potential legal claims). Companies that are considering this option should, therefore, contact their Association for advice.
If a company imposes a change in employees' contractual terms, the employees can reject the change simply by saying that they do so. They do not have to resign or even put their position in writing. By working on but continuing to make clear that they reject the new terms, they are effectively maintaining their right to the original terms of their contract.
There are various ways in which employees can enforce their contractual rights, as outlined below (Potential legal claims). There may come a point when an employee who originally protested at the imposition of a change but has not taken any action to enforce his or her rights will be taken to have agreed to the new terms. It is difficult to predict, however, exactly when that point might be.
If an employee does not accept changes that have been unilaterally imposed, there are various legal claims that he or she can bring (although the employee will usually have to bring a grievance before launching a legal claim ( dealing with grievances )). In summary:
- If the change has caused the employee some form of quantifiable financial loss, he or she can claim damages for the company's breach of contract. This claim can be made in the ordinary civil courts. It can also be made in an employment tribunal if the employee's employment has ended but the tribunal cannot award more than £25,000.
- If the change means that the company is paying the employee less than what is 'properly payable' under his or her original contract of employment, he or she can bring a claim to an employment tribunal that the company had made an unlawful deduction from his or her pay. (The scope for unlawful deductions claims is explained elsewhere in this Guide (deductions from pay).)
- If the change has not yet been implemented, or if it has been implemented but does not involve financial loss, the employee can seek a court order preventing the company from implementing the change, or a declaration from the court setting out his or her contractual rights. In practice, these types of claim are rare because of the costs of legal representation.
- If the change involves a serious breach of contract that goes to the heart of the employment relationship or involves one of the more important terms of the contract, the employee can resign and claim that he or she has been constructively dismissed. The employee can then claim damages for wrongful dismissal (that is, a dismissal in breach of contract) in the civil courts or an employment tribunal, on the basis that the company gave the employee no notice that his or her contract would be terminated. The employee can also bring a claim of unfair dismissal to an employment tribunal. A constructive dismissal is not necessarily unfair, but it will be if the company has not acted reasonably in imposing the change. This issue is discussed elsewhere in this Guide (demonstrating reasonableness ).
- If the change that is imposed is sufficiently fundamental and wide-ranging, the employee can remain in employment and claim that the company has effectively withdrawn his or her original contract of employment and imposed a new one. That is, the employee can claim that he or she has been expressly, rather than constructively, dismissed from the original contract. Again, the employee can claim that this dismissal was wrongful or unfair.
It is important to note that some of these claims can be made while the employee is still in employment. In particular, if a company imposes a change that causes an employee immediate financial loss, it is relatively easy for the employee to bring a claim in the employment tribunal that the company has made an unlawful deduction from his or her pay (though the employee would first have to raise a grievance in writing with the employer ( minimum grievance procedure ). On the other hand, there are fewer legal risks involved in imposing a change that does not involve unlawful deductions from an employee's pay and is not such a significant change to an employee's terms that it would justify the employee resigning and alleging constructive dismissal.