The Variation of Terms in a Contract of Employment in Ireland

The dynamic, long-term nature of a contract of employment means that the contract will constantly change. These changes, however, will have to be compliant with the rules regulating the alteration of contracts of employment. Technical legal difficulties may arise because alterations within the contract of employment do not comply with the requirements to the alteration of contractual rights.

Changes can be made in the terms and conditions of a contract of employment in one of a number of ways: (1) By variation supported by consideration; (2) where there is a specific clause in the contract permitting alteration of terms and conditions; (3) or (where this does not infringe the Unfair Dismissals Act, 1977-2007) by dismissal followed by re-engagement.

The conditions to lawful variation of a contract of employment

The two essential conditions to lawful variation of a contract of employment are: (a) consideration and (b) consent.

Acceptance

Acceptance must be deliberate. In Cowey v. Liberian Operators Ltd the employer wished to secure the employee's consent to a reduction in the period of notice prior to dismissal, from three months to one month. The proposed change was inserted in an office memorandum which was passed around, and initialled by the staff, including the employee in question. The plaintiff, who had just been induced to join in a senior capacity, and had been promised a three months notice period, assumed the memorandum could not have been intended to refer to him, and that the proposal must have been intended to refer to junior employees such as short hand typists. It was held that the employee's signature did not constitute meaningful consent.

Acceptance of the variation of a contract of employment may be implied through the employee's continuing to remain in work without protest. However, implied acceptance will not be inferred in at least three circumstances.

(i) Experimental compliance with a variation does not either necessarily constitute consent. In Sheet Metal Components v. Plummeridge the employees worked in as toolmakers in the appellants factory in Darwin Close, Reading. However, as the respondents were closing down their business, it was decided that the employees should be asked to relocate to the employer's parent company's premises in Cardiff Road, Reading,