Labour & European Law Review Weekly Issue 403 21 January 2015
The EAT in Wess v Science Museum Group has confirmed that when an employer unilaterally imposes a change to a contract of employment which does not have immediate effect, they cannot assume that the employee has accepted the change, even if they continue to work under the contract without objecting.
After a restructuring exercise in 2003, Ms Wess was offered a new lower grade position as Curator of Science. However, she was then sent an entirely new contract which reduced her notice period from six months to 12 weeks. Although she did not sign the contract, she did not object to the different terms except to appeal against the grading of her new position.
Following a 10 per cent reduction in staffing costs, the museum launched a redeployment programme which included considering staff for new roles. In December 2011 and February 2012, Ms Wess took out a number of grievances against two senior members of staff. While these were ongoing, she was invited to a redeployment interview. The selection panel included the two members of staff against whom she had brought grievances. Ms Wess objected. In response, her employer increased the number of panel members and arranged that the two managers about whom she had complained only had one vote between them.
Ms Wess was informed she had been unsuccessful following her interview. Nor was her appeal upheld. She brought a number of claims, including wrongful and unfair dismissal.
In terms of her claim for wrongful dismissal, the tribunal found that she had impliedly accepted the change of contract which reduced her notice period. Although she had not signed it, she had continued to work to the new contract for nine years without objection. In considering the time period the tribunal took into account the fact that she held a trade union role and who was someone who could be expected to raise queries.
It also found that Ms Wess’s employer had taken steps to ensure that her concerns about the panel members were addressed. The two managers about whom she complained only had one vote between them and there were three other members, two of whom were relatively new to the organisation and totally independent. It was therefore satisfied that her dismissal for redundancy was fair.
When considering whether the conduct of an employee amounts to acceptance of a variation, the EAT confirmed well established case law that employers should not assume employees have impliedly accepted a unilaterally imposed new term where it does not have immediate effect. In this case, the EAT held that Ms Wess had expressly raised an objection to part of the new package by appealing against the grading of her post. However, she did not expressly object to other changes in her terms and conditions. Having been offered a new job on a new contract, she accepted the former and worked to the latter.
In finding that the employee had accepted the new contract, the EAT commented that a notice period could have an immediate impact on job security, for example when applying for a mortgage.
The appeal tribunal also found that the tribunal had carefully scrutinised the evidence regarding the composition of the panel and was entitled to conclude that it was not unreasonable, nor did it impact in any way on the fairness of the selection process, not least because Ms Wess herself accepted the change at the time it was made.
While this case confirms that an employer cannot assume an employee’s silence amounts to acceptance of new terms and conditions, employees faced with new contracts of employment which they do not want to accept should make this clear to the employer by working under protest.