ACCA F4 - Corp and Business Law (ENG)

136 8: Contract of employment  Part C Employment law

Alternatively, an implied term may act to vary the contract.

(a) A sales representative may be required to take responsibility for such area as their employer

considers necessary in order to meet changing market conditions.

(b) Terms may also be implied by custom, for example, where a steel erector is required at the request

of their employer to change sites: Stevenson v Teeside Bridge & Engineering Co Ltd 1971

6.2 Changing the existing contract

The existing contract can be changed by consent. Consent might be demonstrated by oral agreement to

new terms, by the signing of a new statement of terms and conditions or by the employee showing

acceptance by working under the new terms. If an employee's contract is varied without consent, the

employee may have a claim for constructive dismissal.

6.3 Signing a new contract

The third option open to the employer is to give contractual notice to the employee and then offer a new

contract on the new terms. This opens the employer to a potential claim for unfair dismissal. It is

generally best for the employer to obtain consent to vary the terms of an existing contract.

7 Continuous employment

Many rights given to employees under the Employment Rights Act 1996 are only available if an employee

has a specified period of continuous employment.

You may have noticed references to 'continuous employment' in the previous sections. Most of the

employment protection which is available is only given to employees who have one year's continuous

service.

You need to learn that one year's continuous service is required to qualify for employment protection and

then learn the exceptions to this rule which are pointed out for you where they are discussed.

There are provisions in statute for how the year's continuous service should be calculated, and what

counts as service and what does not. The basic rule is that a year is twelve calendar months.

Certain weeks might not be taken into account in calculating continuous service, but they do not break the

period of continuous service. This might be the case if the employee takes part in a strike, or is absent due

to service in the armed forces.

Illustration^

(^)
If Ben was employed for eight months and then was given leave to do some service in the army for five
months, on his return to the employer he would have been employed for 13 calendar months.
However, until he completes another four months of service he will not be eligible for the employment
protection given to those employees with a year's continuous service. Once he has completed those four
months, the eight months prior and the four months subsequent to the armed service will count as
continuous service, despite being split by a period away from the employer.
7.1 Transfer of undertakings
Another factor that impacts on continuous service is when a business or undertaking is transferred by one
person to another. Where the business is transferred, so that an employee works for a new employer, this
change represents no break in the continuous service of the employee.
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