The claimant presented a claim in which he sought 12 days' pay, which he claimed was owed to him after his contract was terminated by reason of redundancy. As a result of deteriorating business the respondent warned the claimant that it was possible that he would be required to go on a four day week on a temporary basis, until the level of work improved. For the remainder of the period of his contract of employment the claimant was not paid for the subsequent 12 days when he was not required to work. Subsequently, in correspondence, the claimant challenged the alteration of his hours "without agreement and also no consultation, discussion or notice" and claimed this was a breach of contract and amounted to an unlawful deduction in wages.

The tribunal first considered whether the claimant's contract entitled the respondent to be placed on the four day week. There existed a company booklet, to which all employees had access, which specifically included a provision concerning 'short term working', but it was held that this was never actually incorporated into the claimant’s contract. As well as this, it was held that the claimant never at any time actually agreed to a variation of his contract. Whilst it was accepted that the claimant understood the reasons for the variation, this did not amount to consent and the tribunal noted that in the circumstances the respondent "should have obtained the claimant’s consent to the said variation of his contract, before imposing same". The tribunal also held that the claimant did not affirm the contract or waive any breach. The claimant was entitled to be paid for the said 12 days.

Practical lessons

This appears to be a relatively claimant-friendly decision with an employer being found liable, despite notifying the claimant of the proposed changes to hours and even speaking individually with him. However, it is clear that the tribunal required something more than mere acquiescence to demonstrate consent. For employers, this decision demonstrates the importance of having documented evidence of an employee's agreement to such a variation.