A ‘working under protest’ scenario will often arise where an employee has lodged a formal grievance within the workplace following a contractual change to their pay or other terms, whilst preserving their right to take legal action against you.
When an employee is working under protest, it is imperative as an employer that you seek to resolve the issues that form the basis of their complaint as soon as possible, otherwise you potentially risk exposure to claims for breach of contract or constructive dismissal.
What does working under protest mean?
Working under protest can arise in response to changing an employee’s contract terms, such as varying contracted working hours or duties. If the employee does not consent to the changes, they may opt to continue working for you under the proposed new terms, while stating that in doing so they are not accepting the new terms. This is known as ‘working under protest’, which should allow for discussions about the changes to take place and any complaint to be resolved.
This means that an employee can still work for you pending agreement or some form of resolution to the matter complained of, for example, through collective consultation or internal grievance procedures, without affirming any change in their working conditions or waiving any alleged breach of contract.
The right to work under protest
Working under protest can arise in a number of situations where an employee has not agreed to any proposed changes to the terms and conditions of their contract of employment. These changes could include:
- Cutting an employee’s basic rate of pay, reducing bonuses or overtime rates, or reducing any holiday or sick pay entitlement
- Reducing an employee’s hours so they earn less, increasing the hours they work or changing the times at which they work
- Changing their normal place of work or their daily contractual duties
- Changing their entitlement to annual or sick leave
- Reducing any fringe benefits or perks
- Changing their contractual maternity or redundancy rights
In some cases you may be justified in making changes to the employment contract, for example, asking an employee to work different hours or at a different location, as long as there is some form of flexibility or relocation clause within their contract of employment that allows for this.
However, employers can only use these types of contractual clauses to make reasonable changes. By way of example, asking an employee to relocate to a different region of the country on very short notice is unlikely to be considered reasonable. You must also follow a fair procedure if you want to use a variation clause to change an employee’s contract of employment.
In the absence of any such contractual provision, and in seeking to change an employee’s working conditions without their agreement, this could result in them refusing to work under the new conditions. Alternatively, the employee could choose to work under protest, whilst preserving their right to claim for breach of contract or an unlawful deduction from wages where relevant.
If you unilaterally change the terms and conditions of an employment contract in a fundamental way, forcing an employee to accept unreasonable changes as to how they work, the employee could also threaten resignation, together with a claim for constructive dismissal.
To prove constructive dismissal there must be a serious breach of either an express contractual term or breach of the implied term of mutual trust and confidence, such that the working relationship is no longer tenable. In most cases the employee must also have accrued two years’ continuous service with you.
When can an employee work under protest?
An employee may be working under protest following a variation in their terms and conditions, even if they have not notified you that this is what they are doing.
However, to be able to clearly demonstrate their opposition before a tribunal, the employee would usually need to provide sufficient evidence that this was the case. This would involve the employee having made it clear to you in writing, on a routine basis, for example, every time they got paid, that they did not agree with the changes made.
If an employee fails to set out in writing that they were working under protest, or otherwise produce evidence that you were aware of this, it could be argued that they have affirmed any change in their working conditions and waived any breach of contract. The longer an employee continues to work under the new terms, the more likely it may be seen that the situation has been accepted.
In the context of a claim for constructive dismissal, any failure by the employee to act promptly in response to contractual changes could also allow you to argue either that they did not resign in response to the alleged breach, but rather for a wholly unrelated reason, or that any breach was not sufficiently serious to warrant immediate resignation.
How to manage a working under protest scenario
Where issues arise following a unilateral contractual variation, it is always best to attempt to resolve the matter informally, before the matter escalates into a formal grievance or the employee chooses to resign and claim constructive dismissal. In this way you can minimise any exposure to legal action and the potential loss of a valuable member of staff.
Many issues can be resolved internally through a simple discussion with a line manager or HR personnel. If the matter cannot be resolved informally, you should signpost your employee to any written grievance policy within your workplace, inviting them to utilise this procedure as a way forward. The details of your grievance procedure should either be set out within the employment contract, any company handbook or on the staff intranet site.
In the absence of any written policy, you should follow the ACAS Statutory Code of Practice on handling grievance situations in the workplace. This Code sets out the procedure that you should follow, including the basic requirements of fairness and reasonable behaviour that will be applicable in most cases. Although any failure to follow the Code does not, in itself, make you liable to proceedings, a tribunal will take the Code into account in relevant cases.
Once an employee has raised a formal grievance, you have a duty to investigate the matter and provide them with a written outcome. You will need to arrange for a grievance hearing without unreasonable delay, ideally within five working days. This hearing will provide the employee with the opportunity to explain their complaint in detail and how they would like the matter to be resolved.
An employee usually has a statutory right to be accompanied at any grievance hearing upon reasonable request. They can be accompanied either by a co-worker, a trade union representative or an official employed by a trade union.
Following the hearing you should provide your decision in writing, normally within 24 hours. In some cases, depending upon the nature of the grievance, the hearing will need to be adjourned for further investigation. You should inform your employee if this is the case, together with the likely timescale involved.
You should clearly document the grievance process, including the precise nature of the complaint, the way in which this was handled and the reasons for your decision. In the event that the matter is not resolved in the employee’s favour, you should provide them with an opportunity to appeal the outcome.
Even having raised a formal grievance, it remains open to the employee to decide whether their position at work remains untenable, and whether or not to treat any change in their working conditions as a fundamental breach of contract.
It also remains open to them to bring a legal claim to resolve the issue, including a claim for breach of contract, or unlawful deduction from wages where the change affects their pay, whilst continuing to work for you under protest.
What are the risks of mismanaging a working under protest situation?
Where you face clear resistance following a variation to an employee’s contract of employment, it is imperative that you attempt to resolve this matter as quickly as possible.
By failing to resolve a complaint internally, on either a formal or informal basis, this can result in an award of damages being made against you, together with the time and additional expense associated with legal action. It can also easily lead to lower levels of engagement and performance in the workplace until the matter is satisfactorily resolved, or even the resignation of employees.
An employer should also bear in mind that even where an employee continues to work without protest following changes to their working conditions, this does not necessarily mean that they have accepted the changes or waived any breach, simply by the absence of any complaint.
In the case of Abrahall & Others v Nottingham City Council, the issue arose as to whether employees had accepted a contractual variation by continuing to work without protest for a period of two years.
Here the council imposed a pay freeze, such that employees did not receive an annual increment to which they were contractually entitled. The employees did not expressly accept this change by signing a new contract, but whilst the union balloted for strike action, no further opposition was raised. A collective grievance, and claim for unlawful deduction of wages, was only lodged when the council looked to continue the pay freeze for a further period of time.
On the facts of the case, the Court of Appeal found that the union opposition from the outset was sufficient to show that the employees had in fact been working under protest throughout the entire two-year pay freeze, and had not accepted a contractual variation to put a hold on annual increments.
The court rejected the argument that continuing to work following a contractual pay cut can never amount to acceptance of the variation, but neither was it the case that this will always be treated as acceptance. It will depend on the particular circumstances, where objection at a collective level may be sufficient to negative any inference of acceptance, even if individual employees themselves say nothing, and especially where the variation is disadvantageous to them.
Changing contact terms
In light of the decision in Abrahall, and having regard to the likely adverse consequences of forcing a variation of contract, employers should always endeavour to obtain express agreement in writing from their employees to any changes in the terms and conditions of their contract of employment.
Where necessary, this should involve a clear and comprehensive consultation process with your employees and any representatives, for example, from a trade union or staff association, explaining your reasons for the proposed changes and listening to alternative suggestions.
If written agreement cannot be reached, employers may then need to explore the alternatives, including the possibility of dismissal and re-engagement on new terms or agreeing on a settlement for contract termination.
DavidsonMorris’ employment lawyers can help with all manner of workforce management issues, including advice on resolving disputes and employees working under protest. Working closely with our specialist HR consultants, we provide comprehensive guidance covering both the legal and HR aspects of workplace dispute resolution processes. For help and advice, speak to our experts.
Working under protest FAQs
Can an employee work under protest?
An employee can work under protest by notifying their employer that they disagree with any changes to their employment contract pending a resolution to their complaint. In this way they will not usually be affirming any changes or waiving any alleged breach of contract, although this cannot go on indefinitely.
Is it lawful for an employer to reduce pay?
In some cases it may be lawful for an employer to reduce an employee’s pay, for example, where the contract of employment permits salary variations. Pay reductions can also be made where collective or individual agreement can be reached with the employee(s).
Can an employer force an employee to do a different job?
In some instances an employer may require an employee to do a different job, although this is usually only permissible if their contract of employment permits this kind of variation in the individual’s working conditions.
Last updated: 7 May 2020