If you vary an employee’s contract of employment and they don’t say anything to suggest that they don’t agree to the changes, does it mean that you can assume that they agree?
There are a few scenarios where agreement can be implied through conduct, but recent case law suggests that silence does not necessarily mean acceptance.
In the recent case of Abrahall v Nottingham City Council the key issue before the Court of Appeal was whether the employees should be taken to have accepted a variation of their contracts by working for two years under the pay freeze.
The Court of Appeal held that they should not, setting out a number of helpful principles on whether acceptance should be inferred, including:
- The question is to be determined objectively
- Acceptance of a variation of contract should only be inferred from conduct where that conduct brooks no other reasonable explanation save for acceptance
- Where the variation is wholly disadvantageous, acceptance is less likely to be inferred
- The collective protest may suffice to negative any inference otherwise to be drawn even if the individual employees themselves say nothing
- An employer’s reliance on inferred acceptance will be weakened where the employer represented that there was no variation of contract and thus that acceptance was unnecessary
A lot of you may be re-issuing contracts for the purposes of GDPR at the moment. You must make sure that you get the contracts signed and returned to you. We know that this is not always possible, but at least be able to demonstrate that you have taken all reasonable steps to make sure that this is done.
If you need to make any changes to your contracts or need to make sure they are updated for the purposes of GDPR, then get in touch. 0115 870 0150 or email firstname.lastname@example.org