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Topic: Changing terms & conditions and TUPE

employment contract variation flow chart 2
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Employment contract variation flow chart 2

Employment contract variation flow chart 2

 

Use this flow chart when attempting to impose a contractual variation that requires employee consent. See the employment contract variation flow chart 1 to help you determine if employee consent is needed. 

 

Employee agrees

Where the employee has agreed to the change, you should get them to sign an acknowledgement to that effect. The easiest way to do this is by requesting them to sign an acknowledgement to your letter setting out the change. This should avoid any disputes in the future as to what the change was and whether they agreed to it. Even if employee consent is not needed it is always a good idea to get such written consent to be able to show that the employee is aware of the change. If there are substantial changes it may be necessary to re-issue the employee’s contract for the employee to sign.

 

Employee refuses

Where an employee refuses to accept a change, you may decide that the only way forward is to impose the variation by way of dismissal from the old contract of employment coupled with an offer of continued employment on the new contractual terms. Beware that this can still amount to an unfair dismissal depending on the circumstances regardless of whether or not the employee accepts the offer of re-employment on the new terms.  For more guidance on when it may be appropriate to use this course of action, see our guidance to our Letter Terminating Employment and Offering Re-employment on New Terms.

 

Written statement of particulars

If contractual terms have effectively been varied and the variation relates to any of the written statement that the employer is obliged to provide, the employer must, within one month of the change, issue a new statement giving details of the change. A failure to do so will not affect the variation, but will entitle the employee to a remedy for failure to provide the statutory statement.

The employer cannot vary contractual terms merely by amending the written statement, as it is usually only evidence of the terms of the contract, rather than the contract itself. However, if the employee continues to work without protest after receiving the amended statement, this may provide evidence that they have impliedly agreed to the new terms.

 

 

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