A more recent version of these Varying Terms Model Answer notes – written by University Of Law students – is available here.
The following is a more accessble plain text extract of the PDF sample above, taken from our Employment Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
Varying Terms of a Contract of Employment Model Answer IS THE PROPOSED CHANGE A BREACH OF CONTRACT??
IS THE BREACH SERIOUS ENOUGH TO AMOUNT TO A REPUDIATORY BREACH??IF IT IS SUFFICIENTLY SERIOUS TO BE A REPUDIATORY BREACH...
REMEDIES?UNFAIR DISMISSAL???WRONGFUL DISMISSAL Identify the term that is being varied Check the contract - Is there a term that allows changes to be made?
o If so, no breach occurs upon changing the term unless the employer implements such a term in an unreasonable way - that could potentially be a breach of the implied term of mutual trust and confidentiality which amounts to a repudiatory breach (United Bank v Akhtar)
? If no term that allows flexibility - breach as the employer has altered the terms of the employment contract Pick out the facts that suggest it is serious: o Curtails social life o Makes childcare arrangements difficult Pick out the facts that suggest it is not serious: o No change to overall hours o No change to shift pattern o No change to location
? Conclude appropriately and state it is a question of fact for the tribunal If the breach is deemed not to be sufficiently serious to be a repudiatory breach, it will still be a breach of contract. This means that the claimant can still bring a breach of contract claim in the civil courts. However the claimant must show his loss and this may be difficult as the claimant may not have lost anything (e.g. his hours may have just changed - same pay) Continue to work and accept the breach Leave and do not bring a claim Continue work under protest (i.e. raise a grievance as not to waive the breach) Resign within reasonable time on the basis of constructive dismissal and claim unfair dismissal Net salary and benefits for notice period OTHER CLAIMS Use flowcharts and model answer The employer doesn't have to show that the change was essential; just that they had a good reason It will usually in this case be for Some Other Substantial Reason When it gets to procedure, answer the questions on the flowchart from WS3 - if the employer hasn't done one of those things (such as consult the employees), advise them to do it now Remedies: o If it is just a change of working hours for example there will usually be no loss o Also the employee has a duty to mitigate, and not accepting the
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