Varying Employee Contracts

In the Employment Appeals Tribunal case of Robinson and Tescom Corporation, Mr Robinson was employed as a territorial manager for Tescom, selling systems and components. Tescom formulated a restructuring plan that involved expanding the territory covered by Robinson. Initially this required national travel but, as he did not agree with this proposal, it was amended to cover the whole of the south of England.

Robinson subsequently raised a grievance about the changes stating he wished to remain in his existing position. At the conclusion of the grievance Robinson said that he would take on the extended sales territory, but would review the situation over a 12 month period. Two months later, he said that he would work under the new job description, but under protest, and that he was treating the change as a breach of contract.

He subsequently refused to work to the new terms and Tescom dismissed him summarily for failure to follow a reasonable management instruction. Robinson brought claims for unfair dismissal and breach of contract.

The employment tribunal dismissed the claim, as Robinson had agreed to work under the terms. On appeal, the Employment Appeal Tribunal held that having taken the position that he would agree to work under the new terms albeit under protest and reserving his rights, he was required to in fact work under those new terms. The employment tribunal had been correct to hold that there was no unfair dismissal when Tescom terminated the employment in response to Robinson’s refusal to work under the new terms.

This decision confirms that an employee who is faced with an attempt by the employer to unilaterally vary the contract of employment has four options:

1. To agree to the variation
2. To resign and claim constructive dismissal
3. To refuse to work under the new terms (thus forcing the employer to either permit the employee to continue working under the old terms or to dismiss
4. To ‘stand and sue’ by working under protest and seeking damages (either for breach of contract, or for unfair dismissal).

This case illustrates that employees have to choose one course of action and, having done so, can’t then change to another.