Contract Variations: Implied Acceptance?

In Wess v Science Museum Group UKEAT/0120/14/DM, the Employment Appeal Tribunal (EAT) considered whether an employee had impliedly accepted a variation of her contract of employment by continuing to work for 9 years, without expressly objecting to it.

Ms Wess, a senior curator, was sent a new employment contract part way through her employment.  This contained a change to her notice period from 6 months to 12 weeks.  She never signed the contract but continued to work for 9 years without raising any objection to it.  When she was dismissed by reason of redundancy, she claimed she was entitled to the longer notice period.  The EAT held that Ms Wess had impliedly accepted the changes to her terms and conditions by continuing to work without raising any objection; the shorter notice period was therefore enforceable.  Two factors were crucial to this conclusion: (i) the changes concerned an entirely new contract and not merely a unilateral variation to current terms; and (ii) the change to her notice period would have had an immediate effect on Ms Wess by impacting on her job security.  The EAT stressed that acceptance would not be readily implied from an employee's failure to object to variations which did not have an immediate effect on their employment (e.g. changes to sickness policies or to post-termination restrictions).  The EAT also took into account the fact that Ms Wess had been an active trade union representative and so the change to her notice period would have been clear to her.

Although this was a positive result for the employer, as general rule, employers should be extremely cautious of relying on an employee's implied consent to any contractual changes and should try to obtain the employee's written consent to any such changes.