Pro testing

GAP Personnel Franchises Ltd v Robinson

The law makes pretty clear that if an employer unilaterally varies their employee’s contract, the employee should protest if they do not agree with it. Otherwise, if they continue to work under the new terms it is likely they will be taken to have acquiesced. A point recently reinforced by the Employment Appeal Tribunal (EAT) in GAP Personnel Franchises Ltd v Robinson (IDS 843).

Basic facts

Mr Robinson started working as a Franchise Operations Manager in January 2006. Clause 18 of his contract stated that he was to be provided with a company car for which he could claim 25 pence per mile. Clause 31 stated that he would be given a month’s advance notice of any significant changes.

Mr Robinson was then paid 15 pence per mile when he submitted his claim form in February. On querying this, he was informed that the 25 pence rate only applied to use of private, not company, cars. He continued to claim the lower rate until he resigned in July 2006.

He later submitted a grievance under the modified statutory procedure, claiming that he should have been paid at the rate of 25 pence per mile, and lodged a tribunal claim for breach of contract and unlawful deduction of wages.

Tribunal decision

The tribunal said that Mr Robinson was contractually entitled to be paid 25 pence per mile. The only way the company could lawfully deduct the lower rate would have been to agree a variation of his contract with him, which it had not done.

The question, however, was whether Mr Robinson had “affirmed” the contract by continuing to work under the varied terms. The tribunal said that although he had apparently acquiesced for six months, that did not mean he had lost the right to sue for damages.

Instead, it said that as he had had no choice but to accept the variation, he had not agreed to it and was therefore entitled to claim just over £2,000 in unpaid expenses.

Had this been a constructive dismissal case, however, the tribunal said that it would have decided that he had lost the right to resign, having acquiesced for six months.

EAT decision

Equally the EAT was in no doubt that, for the first month at least, Mr Robinson was contractually entitled to receive 25 pence per mile. The company had, therefore, breached his contract and had unlawfully deducted the difference from his wages. And by insisting on paying the lower mileage rate for the rest of Mr Robinson’s employment, it had unilaterally varied his contract.

Again, however, the question was whether, by failing to protest, he had acquiesced. The EAT said that the fact that the unilateral variation was a “fait accompli” was neither here not there, as every unilateral variation could be described in that way.

Nor was it fatal to the company’s claim that Mr Robinson had not protested because he did not want to lose his job. Likewise the fact that the company had not given him one month’s notice of the change, contrary to clause 31.

Given the tribunal’s comment that Mr Robinson would have lost the right to resign after acquiescing for six months, it said that the tribunal should therefore have concluded that he had affirmed the contract sometime during that period.

As such, the EAT said that the company was only in breach for the first month as Mr Robinson knew that it would continue to pay him at the rate of 15 pence per month after that.

It remitted the case to a new tribunal to decide on the factual question about whether Mr Robinson continued to work under protest after submitting his first month’s expenses.