LEGAL LIABILITY

Legal Liability

Legal Liability

1. Rajinder

a).Discuss whether Chemical Components Ltd can vary her contract in the way proposed?

b).Putting aside any possible repudiation of her contract? how enforceable is clause 8.5 of Rajinder's contract?

2. Daisy

Discuss whether Daisy is an employee or self-employed?

Provided Daisy is accepted as an employee? discuss whether she has a potential claim for Unfair Dismissal?

1. Rajinder

a).Discuss whether Chemical Components Ltd can vary her contract in the way proposed?

The advice is still that prior to any proposed contractual change? Chemical Components Ltd should consult with staff and seek agreement to the change. To unilaterally vary a contract of employment without consent runs the risk of breaching the implied term of mutual trust and confidence and a constructive unfair dismissal claim? amongst other things. Relying on a variety clause is not without its risks. Much will depend on the nature of the clause? the nature of the proposed change and the way Chemical Components Ltd has behaved prior to the change. For example? using a variation clause to fundamentally change a person's location or reduce someone's pay is unwise. (Painter 2010)

However? Chemical Components Ltd may reserve the ability to change a particular aspect of the contract unilaterally by notifying the employee prior to the change. Whether this entitles Chemical Components Ltd to vary will depend on the language of the contract of employment and whether the clause entitles Chemical Components Ltd to change the contract as sort- the change or variation must fall within the contractual power to vary. (Napier 2003)

It was accepted by the Employment Tribunal in Bateman that Chemical Components Ltd could not use the right to vary unreasonably? arbitrarily or capriciously as to amount to a breach of the implied term of trust and confidence. Moreover? Chemical Components Ltd should ensure contractual changes are only introduced following notice? warning or consultation. The position might well have been different if the Claimants in Bateman had produced evidence that when they entered into the contract with Asda they could not have conceivably intended or expected its effect would be to leave Asda free to make what ever changes they liked without the need for consent and without the need for notice. (Honeyball 2010)

Check your contracts of employment. Firstly? do they include a variation clause? Is a variety clause in a Handbook instead? If the Handbook is not part of the contract (which is our advice)? it will not allow a contract change. Secondly? if there is a variation clause as part of the contract is it widely drafted to allow changes for business reasons? for example?  Having a variation clause does not give Chemical Components Ltd carte blanche to make any changes it wishes. If proposing to roll out new contracts of employment the advice would still be to seek agreement before the contract comes into force. However? if Chemical Components Ltd wishes to change one part of it - perhaps because of a legislative change provided it has a clear variation clause? has explained the change? has acted reasonably? and given notice of it? it ...