(Solution) CIPD Avado AC 3.1 (Email 5) Discuss the legal implications of varying contracts

Solution

Email 5: 3.1 Changing an Employee’s Contract Lawfully

Changing an employee’s contract lawfully requires careful adherence to employment law principles to avoid potential claims, such as constructive dismissal.  Variations such as working hours should be communicated openly and performed only when there is a consensus or at the discretion of a sound flexibility clause.

Flexibility Clauses:

Some contracts include flexibility clauses allowing employers to make certain changes, such as adjusting working hours as evidenced by ‌ACAS (2023b). However, these clauses need to be clearly stated and for good reason and each party must not use the clause against the other party in bad faith. Thus, unconditional clauses such as ‘hours may vary as required’, is not a sufficient reason to change them arbitrarily or excessively. For example, in United Bank Ltd v. Akhtar (1989), the court stated that even if the parties contain flexibility clauses, changes must be exercised reasonably so as not to frustrate the contract of good faith (Croneri, 2023).

Constructive Dismissal Claims

Constructive dismissal occurs when an employee resigns due to the employer’s fundamental breach of contract, such as making significant changes to working hours without agreement or reasonable justification (‌ACAS, 2022). For a claim to succeed, the employee must show:

• A breach of contract (explicit or implied terms, such as trust and confidence).
• The breach was serious enough to justify resignation.
• They resigned promptly following the breach.

Regarding working hours, the claimant may allege that a working hour change was sudden or unfair and that increase causes undue hardship. For instance,…..

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