It’s always good practice to a check your contract of employment before you accept a new job, or agree to a promotion or a change in role, to make sure it properly reflects what was agreed.
The government’s Retained EU Law (Revocation and Reform) Bill, introduced in September, if enacted unchanged, will remove important EU-derived statutory employment rights, such as holidays and parental leave. This is a wake-up call to make sure that any statutory rights which could be lost are incorporated into your contract before 31 December 2023.
The contract is a binding agreement between you and your employer. It’s generally prudent for the terms to be set out in writing in case there is any subsequent dispute about what was agreed – especially if the terms are significant. In one case, the court rejected a claim for breach of contract where a senior employee had relied on an oral promise to maintain their pension benefits when transferring to another scheme. The court held that if the parties had intended the promise be contractual, it would have been recorded in writing.
The terms of a contract fall into the following categories:
It’s rare for your contract document to contain all the terms of the contract. Agenda for Change terms and conditions will apply provided that AfC is incorporated into your contract. Usually, there will be an express clause along the lines of: “this appointment is subject to the National Terms and Conditions of Service that are agreed by the NHS Staff Council”.
If the terms of your individual contract are inconsistent with the incorporated terms, a court will consider whether the particular terms relied on are ‘apt for incorporation’ (for example, terms which apply to an individual, such as rates of pay), as well what was intended by the parties, taking into account all the circumstances and what they reasonably understood the terms to mean. In Bent and others v Central Manchester University Hospitals NHS Foundation Trust, an employment tribunal held that the trust’s pay progression policy was inconsistent with AfC and amounted to a unilateral variation of the contractual terms.
It’s a fundamental principle of contract law that there terms cannot be changed without the agreement of both parties. If your employer imposes changes without your agreement, this will usually be a breach of contract.
But some changes to your contract may be allowed by an existing term. This commonly arises when your job duties are changed. Whether this amounts to a breach of contract will depend on the scope of the term. Generally, if the change is to how you do your work, for example, ‘online’ instead of ‘in person’, then this is unlikely to be held to be a breach of contract. However, if the change requires you to undertake duties outside your capabilities, a court is less likely to accept that this is allowed by the existing term.
>> In part two: Jo explains the key clauses and what to look out for when you check your contract.
Flexible and hybrid working are widespread in the NHS but employer attitudes vary and can change suddenly. Jo Seery explains your legal rights if you want to change the way you work.
When employers are making redundancies, it’s often wrongly assumed that people on fixed-term contracts will go first. But these staff do have rights, sometimes even after their contracts expire. Jo Seery explains.
With redundancies happening all over the NHS in England, remember that your employer has a legal duty to consult with you and your union—and that consultation must be ‘meaningful’. Sarah Schnider explains.
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