Legal update: Can an employer rely on an employee continuing to work as implied consent to revised terms and conditions?

In Wess v Science Museum Group it was maintained that, when considering whether the conduct of an employee (i.e. their continued working) amounts to acceptance of a variation in terms and conditions in a situation where the employee has not signed those revised terms, Employment Tribunals should treat with caution the argument that the employee has impliedly accepted those terms, at least where the effect of those new terms is not immediate. Where a new term has an immediate effect on the employee, such as a revised salary or working hours, it may be reasonable to consider that continued working implies acceptance, as the employee, by continuing to work, would be acting in accordance with those revised terms. However this is less so when the revised term’s effect only occurs in the future, such as in the case of restrictive covenants, as it cannot be said that any action of the employee constitutes acting in accordance with such a term – the revised term is simply not relevant at that time.

On the facts of this case, the Employment Appeal Tribunal found that the Claimant, who was bringing a claim in respect of notice pay, had impliedly consented to her revised terms. The EAT’s reasoning took into account that

1. the employee had objected to some of the revised terms, such as her job title, at the time she was given them, but she had not objected to her revised notice period;
2. the employee was given an entirely new contract and she could not cherry pick which terms she agreed and which she did not;
3. the employee held a trade union role and so would be expected to have regard to the detail of the terms and conditions and raise queries if need be; and finally
4. that a period of notice could have an immediate impact on an employee, even if not in quite the same way as the weekly wage, as it impacted upon job security which could have a real and practical importance for the employee.

While on the particular facts of this case, the employee was found to have impliedly consented to revised terms, the lesson to be learnt from this case is that employers should be careful to ensure every employee signs any revised terms and conditions of employment given to them, as it may not be sufficient to rely on the employee’s continued working as implied consent to those terms and conditions.

For further information, please contact a member of the employment law team.