Question and Answers

Over 700 sign-ups for our Future of the Workplace webinar yesterday show much continuing uncertainty on the part of employers as to just what happens next in practical HR terms as the lock-down staggers to a scheduled end in June.  As usual lots of questions were received through the chat facility, so we have combined some of them to avoid duplication.  Here is the first batch of answers – stay tuned for more to come next week:-

  1. What is the legal position of forcing staff back to the workplace in April just because the manager likes his staff where he can see them?

You can tell immediately that this is a purely hypothetical question, obviously, but nonetheless one with a number of very clear answers.  First, Government advice will remain to WFH if you can until 21st June at the earliest.  Second, even after that date, “wanting your staff where you can see them” is not one of the eight acceptable reasons for declining a flexible working request, which is essentially what someone expressing a preference to work from home is making.  Third, while there is nothing wrong with encouraging people back to the office in due time, “forcing” is a wholly different matter.  Any attempt to discipline or dismiss someone for not returning pre-June is doomed to challenge and unfairness unless the manager has a much better reason for requiring a return than the question suggests.

  1. Any advice around when an employee can be deemed to have accepted a contractual change by his not objecting to it?

The starting point for this is a very old contract law principle that silence cannot equal consent (Felthouse – v – Bindley in 1862 if you are interested, although nobody ever is).  However, between rejection or silence on the one hand and express agreement on the other there is acceptance by conduct, where the employee’s behaviour suggests that he has accepted the particular contractual change even though he has not said so in terms.

Suppose you issue a new contract to your employee.  To reflect your straitened post-pandemic trading conditions it contains a reduced 4 day working week, the removal of company sick pay, a more lucrative bonus scheme to reward individual performance and some tighter restrictive covenants because the earlier ones were, on reflection, rubbish.  You hear nothing from your employee in response – he continues to work, but otherwise, not a flicker.  Has he agreed to the new contract just by dint of continuing to carry out his duties for you?

No.  The general principle is that you can only infer acceptance from conduct where that conduct is clearly inconsistent with the employee still regarding himself as bound by the former terms.  If he starts doing a 4 day week, for example, you are probably there, but only if you can show that he is not doing that by taking one day per week as holiday under the old arrangement.  He won’t be taken as agreeing the removal of company sick pay until he is off sick long enough to have qualified previously and then makes no claim or grievance in relation to it.  It follows that it is very hard to gain acceptance by conduct to a revised restrictive covenant, since there is usually nothing the employee does in the course of his employment which indicates whether he regards himself as bound by it or not. Something similar applies to the deemed acceptance of any other new term with purported future effect – not reacting to something which hasn’t happened yet will rarely amount to acceptance by conduct.

On the other hand, if your employee is very successful and so argues for a bonus under the new scheme, clearly he has accepted at least that much of the changed contract.  That does not automatically mean that he has accepted all of them.  Ideally to prevent that you would want some wording in the new contract or variation letter which makes it clear that the employee will only be entitled to benefit from the better bonus scheme if he also accepts the restricted sick pay and tougher covenants.  Without that it would be open to the employee to argue that he had accepted the up-sides but not the detrimental changes.