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working under protest

Working under Protest – The Power of Silence

Many people believe that where an employee works without protest after changes to their terms and conditions they have effectively accepted the changes. However the Court of Appeal in Abrahall V Nottingham City Council have ruled otherwise.

Often where changes are made to an employment contract, the employer will face resistance. However, in some circumstances the employee does nothing. They might not expressly accept the changes in signing a new contract but they also do nothing to oppose the changes.

Working under protest in Abrahall V Nottingham City Council

The Court of Appeal in the above case considered this situation. The Council had implemented a 2 year pay freeze which led to the employees not receiving an annual increment which they were contractually entitled to. Whilst the union initially balloted for strike action, none was taken. Similarly, the Council did not receive any grievances.

However after 2 years, the Council looked to continue to the pay freeze for a further period of time. The union then instigated a collective grievance and the employees claimed for unlawful deductions from wages.

The issue put to the Court of Appeal was whether the employees had in fact accepted a contract variation in working for 2 years without complaining about the hold on annual increments.

A key point in the Court’s decision was that the union had made clear that they opposed the change at the outset. This was enough for the employees to be considered as working under protest despite the fact that the employees had not raised complaints.

The Court ruled that the employees had not accepted the change to their contract, as the change was wholly detrimental to the employees. A decision to take industrial action or start legal proceedings was not considered the same as a decision to accept the changes. Therefore, where it is clear that the changes are opposed at the outset, this cannot be deemed to have been accepted simply from silence over a period of time.

What can businesses do differently?

Businesses should bear in mind that making contractual changes can lead to risk even where it appears the employees are not protesting against the changes. If express agreement to the changes can’t be achieved through consultation, companies may have to consider alternative methods such as dismissal and re-engagement on new terms and conditions.

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