Breach of Contract

An employment contract can consist of both oral and written terms. Just because a term is not in writing does not mean that it does not form part of the contract, although it will often be harder for one or other of the parties to prove. There are also certain terms that form part of the contract of employment because they are implied into the contract, for example, the term of mutual trust and confidence or form part of the contract through custom and practise.

Any term in the contract can be varied with the consent of both parties; however, if an employer varies an employee’s contact without his/her consent, it will not be a lawful variation. Where an employer wants to vary the terms of an employee’s contract, they must consult with the employee in question. If there are good business reasons for the change and the employer holds an open and fair consultation, then it may be possible for an employer to vary the term of the employee’s contract without his or her consent – however – this is notoriously difficult.

Where an employer varies the terms of an employee’s contract, he/she can either: (1) accept the variation, (2) if it is a serious breach of contract, resign and claim constructive dismissal (assuming they have more than one year’s service), (3) stand and sue, i.e. work under the new conditions but reserve their right to sue for the breach, or (4) refuse to work under the new conditions and wait and see what the employer does – which will often be dismissal.

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