Employers wishing to change terms of employment should bear in mind that imposing a change unilaterally may not be effective even if the change is of immediate practical effect and the employee continues to work without expressly stating that this is ‘under protest’. The employee’s agreement to a change wholly to the employee’s disadvantage will only be inferred if this is the only reasonable explanation of the employee’s conduct in continuing to work. Protest or objection at a collective level may be sufficient to negative any inference of acceptance. Further, where the employer has (wrongly) represented to employees that its actions are within the current contract and therefore are not a variation requiring acceptance, this will weaken any argument that acceptance should be inferred from continuing to work.
In Abrahall v Nottingham City Council, the Court of Appeal ruled that a group of employees who continued to work after their employer imposed a pay freeze, wrongly representing that it was entitled to do so, did not thereby agree to the variation and were entitled to bring claims two years later. Although the employees had not expressly reserved their position, it was relevant that the employer had represented that the pay freeze was not a variation and the unions had protested strenuously before and after the change (although stopping short of industrial action).