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Variation of Contract: Implied Acceptance

The actual terms of one’s contract of employment can sometimes be an elusive thing to nail down. Many people are unaware that a contract can be altered without them ever expressly agreeing to such alterations being made and/or via implied custom and practice over a prolonged period of time.

Nevertheless such variations to a contract of employment are entirely possible and occur all the time. It is often only when both the employer and the employee need to consider what the current terms of the employment relationship are that issues previously lying dormant come to the fore.

In the recent Employment Appeals Tribunal (EAT) case of Wess v Science Museum Group such a situation arose. The question placed before the EAT was whether the Employment Tribunal (ET) of first instance was entitled to find that the Claimant, Ms Wess, had impliedly accepted a variation of her employment contract by continuing to work without expressly objecting to a previous variation implemented by her employer on a unilateral basis nine years prior.

Ms Wess had been employed in an assortment of curation jobs since 1979. Her original contract of employment had stipulated she was entitled to six months’ notice on termination of her employment. In 2003 she had been provided with a new contract of employment, which provided for a lesser notice period of twelve weeks.

Ms Wess never signed the latter contract but neither did she object to the new terms her employer had sought to impose.

The original ET found that Ms Wess had impliedly agreed to the variation and the EAT agreed, holding that this was an acceptable conclusion on the facts.

While generally the approach adopted by the tribunal system is one of caution in finding that employees impliedly accepted terms unilaterally imposed by employers, in this instance the employer had made it clear that Ms Wess’ future employment beyond 2003 was offered on the basis of the contract issued at that time.

Conclusion

The takeaway for employers from the above is to ensure comprehensive and decisive follow-up with employees when issuing variations to their existing contracts. If left without a response then situations such as the above case can arise, which obviously will have put the employer to significant legal costs.

A simple way to ensure clarity of position with an employee like Ms Wess would have been to ensure that a deadline was placed upon acceptance or rejection of the new contract, ensuring that the relevant HR function was on the ball in following up with the employee to obtain their express position in relation to the proposed variation.

Clearly for employees, their interests are at cross-purposes with their employer. Clarity as to the terms of the contract being offered and any acceptance or rejection are equally important to an employee as Ms Weiss found above.

As always if I can provide you with any further assistance on queries relating to variations of contract or any other issue, please do not hesitate to contact me for a free consultation on 0113 350 4030 orsamira.cakali@scesolicitors.co.uk.


Please note that the information in this blog is to provide information of general interest in a summary manner and should not be construed as individual legal advice. Readers should consult with SCE Solicitors or other professional counsel before acting on the information contained here. 

Samira Cakali

Samira Cakali is a pragmatic and approachable solicitor advocate with extensive contentious and non-contentious experience in the fields of employment law as well as civil litigation, within a range of commercial businesses from SME’s to multinationals as well as senior executives.

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