Generic "Variation" clause - Is it permissible?

[JRM]

I have been in full time for my current employer in England for less than 1yr and today I successfully completed the probationary period. Within my contract this entitled me to a specific increase in my salary from X to Y. My employer told me at the meeting to announce the completion of my probation that they were not going to implement the increase. In my employment contract is the following clause:

“Variation: The Employer reserves the right to add delete vary or modify any of the terms rules and/or procedures contained in or associated with this Contract of Employment and notice will be given to the Employee of any such changes as well as copies of any additions or changes which are made.”

The reading I have done on this matter (CAB, ACAS etc.) stipulates that for the clause to be valid it must make reference to the items/clauses that can be amended, for example work location or work hours, and not allow unilateral changes to the entire contract.

I would welcome being educated to the contrary if my interpretation is wrong but assuming I am right, is there a statute or case that substantiates my thinking?

Many thanks in advance,

JRM

[matt3942]

Re: Generic "Variation" clause - Is it permissible?

Hi [MENTION=69016]JRM[/MENTION] - welcome to the forum.

IMO this clause is invalid because it's vague. Wait to see what others on here say but I would suggest your employer has breached your contract.

- Matt

[FlamingParrot]

Re: Generic "Variation" clause - Is it permissible?

I would also be inclined to agree with the idea that there's been a breach of contract. Contracts can have variation clauses but not blanket ones that allow them to vary anything, that would completely defeat the purpose of having an employment contract in the first place.

You need to let them know that you disagree with the decision not to honour the salary increase after probation clause, otherwise it will be implied that you accept the unlawful 'variation'.

[MissFM]

Re: Generic "Variation" clause - Is it permissible?

[DOC]Unilateral Variations Clauses Paper by Mathew Purchase

is interesting, although frustratingly ambivalent as regards your situation.

Also, for case law this might be relevant even though it's a different situation:
http://www.icaew.com/en/library/subj...it-to-employee

particularly this:

Recommendation

• Employers asking employees to agree variations to their contracts should ensure the employee is offered some benefit in return (other than continued employment), that relates to the new terms and that the employee knows about, or risk the variation being ineffective.

Case ref: Re-Use Collections Ltd v Sendall & Anor [2014] EWHC 3852

- - - Updated - - -

[teaboy2]

Re: Generic "Variation" clause - Is it permissible?

I agree completely with what others have said here, the clause is an invalid term as it is too broad in regards to what it says can be changed. Fact is valid contractual terms can not be changed where they have a direct impact or detrimental impact on the employee, i.e. hours, place of work, salary/wages. Only terms that relate to things like company policy can be changed unilaterally i.e. bonuses (a non expressed term) or to tie the terms in with the changes made to policies (where said changes effect non expressed terms only - But even then the clause must state which terms in relates to as the terms that may be changed. Expressed terms such as hours and salary can not be changed unilaterally and it is in fact best practice to have employees agree to any change in terms regardless.

The only clause that can result in unilateral change, would be written similar to this - If any of these terms are deemed to be invalid/unlawful by the courts, then they shall be removed and deemed to no longer be part of the contract and may no longer be relied upon!

You need to raise a formal grievance pointing out the clause is invalid as it leaves the entire contract and all its terms open to being unilaterally changed without need of your agreement, which therefore defeats the purpose of having any contract and is therefore an unfair term. Not only that, but as the term is an unfair term any changed made under said term would amount to a breach of contract! Such clauses/terms most be clear as to which terms they effect i.e. bonuses, and other NON EXPRESSED Terms (i.e. a Term that is not prescribed Term required by law). This Clause/Term fails to state which terms may be changed unilaterally, as such it would as it stand cover every term in the contract, which is not permissible by law! YOu therefore expect you wage to be increased to Y level as per your contract!


Note: Whilst you have only been there a short period of time and less than 2 years, you have no right to take this to tribunal, due to lack of 2 years service. However you can take such breach of contract issues, should the go ahead with the change, to the county courts to have the clause removed from your contract. The employer would also be be required to back date your pay and put you on Y level, should you win on the day.

[JRM]

Re: Generic "Variation" clause - Is it permissible?

Thank you everybody for the help thus far.

During my meeting I stated that my contract would not allow such a change and this was disputed by my Employer who claimed that they had taken advice. I registered my objection verbally. Early next week I will receive a letter notifying me of the end of my probation, and I assume, my wage going forward. I will then register my disagreement in writing citing a breach dated back to the conclusion of my probation.

My employer outsources such matters to Pinnacle HR. I doubt that this matter has been given due consideration but I do not want to press the nuclear button or enter into a long and bitter dispute because no one wins in the long term.
Therefore, I really only have one chance to make them think again and to convince my employer that the advice they have been given is less clear cut than they believe. The more cases or white papers I can point to the better. My hope is that there is a silver bullet out there of specific relevance.

[teaboy2]

Re: Generic "Variation" clause - Is it permissible?

Thank you everybody for the help thus far.

During my meeting I stated that my contract would not allow such a change and this was disputed by my Employer who claimed that they had taken advice. I registered my objection verbally. Early next week I will receive a letter notifying me of the end of my probation, and I assume, my wage going forward. I will then register my disagreement in writing citing a breach dated back to the conclusion of my probation.

My employer outsources such matters to Pinnacle HR. I doubt that this matter has been given due consideration but I do not want to press the nuclear button or enter into a long and bitter dispute because no one wins in the long term.
Therefore, I really only have one chance to make them think again and to convince my employer that the advice they have been given is less clear cut than they believe. The more cases or white papers I can point to the better. My hope is that there is a silver bullet out there of specific relevance.

Pinnacle HR (http://www.pinnaclehr.com/)- I bet that's who has advised them too. One thing that companies whom provide outsourced Human Resource is not and that's an employment lawyer and solicitor, most are not even up to task on employment law - But what we are talking about here is not employment law but basic contract law!

[JRM]

Re: Generic "Variation" clause - Is it permissible?

Would anyone be kind enough provide a quick tutorial on how to search case law? The paper above by Matthew Purchase was published in 2011 and I want to see if anything of significance has come to light since.

[teaboy2]

Re: Generic "Variation" clause - Is it permissible?

Would anyone be kind enough provide a quick tutorial on how to search case law? The paper above by Matthew Purchase was published in 2011 and I want to see if anything of significance has come to light since.

I doubt you will find one more recent - But end of the day the clause in your contract is to broad, it permits them to unilaterally change any term of your contract without consent. Meaning they could change every single term in your contract, effectively replacing your contract and putting you on to a new contract you never gave consideration or acceptance too (Two of the basic principle requirements for forming a binding contract).

[MissFM]

Re: Generic "Variation" clause - Is it permissible?

Would anyone be kind enough provide a quick tutorial on how to search case law? The paper above by Matthew Purchase was published in 2011 and I want to see if anything of significance has come to light since.

Try this:

https://www.kent.ac.uk/library/subje.../case-law.html

HTH x