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Contract variation: effect of not objecting

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 Thanks to Naomi Cunningham of Outer Temple Chambers for preparing this case summary

Was an employment tribunal entitled to find that an employee had impliedly accepted a variation of her contract of employment by continuing to work, without expressly objecting to it, for 9 years?

Yes, held the EAT in Wess v Science Museum Group.

Ms Wess was employed in various curator roles from 1979. Originally she had been entitled to 6 months’ notice of termination. In 2003, she was sent a new contract which - among other changes - purported to reduce her notice entitlement to 12 weeks. She never signed the contract, as requested; but neither did she say that she objected to the new terms. She continued to work until her dismissal on 6 weeks’ notice.

The ET found that Ms Wess had impliedly assented to a variation of her contract, and the EAT held that that was a permissible conclusion. Although tribunals must be cautious in finding implied acceptance of a unilaterally-imposed new term whose effect is not immediate, the employer had made it plain here that future employment was offered on the basis of an entirely new contract.

The result is plainly right, even if contract pedants may regret that the EAT passed up the opportunity to clarify the often-blurred distinctions between affirmation, acceptance of variation, and waiver of breach.