‘The inherent imbalance of power that exists between employer and employee means, in effect, that breaches of contract can be legally classified as variations of terms and conditions.’

Discuss.

• You should note that employers and employees have different economic resources and that an employee may need the job more than an employer needs a particular individual.
• You should state that lawful variations can be achieved by express consent, which can be achieved individually or through collective bargaining. Changes made through the latter are based on majority views rather than individual wishes.
• You should point out that a unilateral variation is a breach of contract but after a period of time the employee’s compliance with the variation without protest may convert the change into a mutual one. The necessary period of time will depend on all the circumstances and will ultimately be determined by a court after the event. You might refer to Harlow v Artemis Ltd [2008] on p 118.
• You should observe that if a proposed change is not put into effect it will be easier for the employee to argue that there was no consensual variation and that the imposition of the change would amount to a breach of contract.
• You should comment that employees might acquiesce in proposed changes owing to ignorance about how to resist them or fear of the consequences of non-acceptance. As a result of uncertainty, they may also fail to object before a proposed change is implemented.
• For more examination material you should read Questions and Answers Employment Law 2018 by Roseanne Russell, published by Oxford University Press.