Employment contract variation flow chart 2

Use this flow chart when attempting to impose a contractual variation that requires employee consent. See the employment contract variation flow chart 1 to help you determine if employee consent is needed. 

Employee agrees

Where the employee has agreed to the change, you should get them to sign a written acknowledgement to that effect. The easiest way to do this is by requesting them to sign an acknowledgement to your letter setting out the change and the date it comes into effect (giving as much notice to them as reasonably practicable). This should avoid any disputes in the future as to what the change was and whether they agreed to it. Even if employee consent is not needed it is always a good idea to get such written consent to be able to show that the employee is aware of the change. If there are substantial changes it may be necessary to re-issue the employee’s contract of employment for them to sign. It’s then good practice to invite feedback about the change as the employee adapts to it, and to consider what might be done to mitigate any negative impact on them.

Employee refuses

Where an employee refuses to accept a change after you’ve undertaken full, open and meaningful consultation with them and you’ve otherwise explored all other reasonable alternative options and compromises with a view to reaching an agreed outcome, you may decide that the way forward, as an option of last resort, is to impose the variation by way of dismissal from the old contract of employment coupled with an offer of continued employment on the new contractual terms (dismissal and re-engagement). Beware that this can still amount to an unfair dismissal, depending on the circumstances, regardless of whether the employee accepts the offer of re-engagement on the new terms.  For more guidance on when it may be appropriate to use this course of action, see our guidance to our Letter Terminating Employment and Offering Re-employment on New Terms. In addition, where you envisage that, if the employee doesn’t consent to the change, you might opt for dismissal and re-engagement to effect the change, you should ensure you comply with the Code of Practice on Dismissal and Re-engagement from the outset of your consultation process, even if the change only affects one employee and regardless of your reasons for seeking it.

Written statement of employment particulars

If contractual terms have effectively been varied and the variation relates to any of the terms and conditions required by law to be covered in the written statement of employment particulars that the employer is obliged to provide (including those now required to be given under the regime in force from 6 April 2020), the employer must, within one month of the change, issue a new or amended written statement (or a statement of change) giving details of the change. A failure to do so will not affect the variation but will entitle the employee to a remedy for failure to provide the statutory written statement.