In this short article, Birmingham employment lawyers Hatton James Legal look at what an employment contract actually means. What does it mean when it says “this contract may only be varied in writing“.

What is an employment contract? 1Any employment solicitor will tell you that the terms and conditions of an employment relationship consist of:

  • Anything agreed between you and a manager at interview or afterwards, orally (verbally) or in emails.
  • Practices common in your industry (eg that waiters get to keep or share tips).
  • Practices common at your place of work (eg christmas bonuses every year).
  • Things a bystander would consider obvious or without which the employment relationship wouldn’t make sense (eg a term that the parties should behave in a manner consistent with an employment relationship, which includes being civil to each other in an office situation).
  • Terms implied by parliamentary statute (eg that men and women get paid equally).
  • Whatever is recorded on the A4 piece of paper that is the ‘statement of terms and conditions’ or the contract of employment.

Confusion sometimes stems from the fact that “employment contract” can refer either to the A4 piece of paper in the last bullet-point above, or the totality of the terms and conditions in the whole employment relationship – that is, all the bullet-points above.

Sometimes the A4 employment contract says that the parties can’t agree further terms and conditions unless some hoops are jumped through, eg that they be recorded in writing. This is intended to stop employees from relying on oral promises made, eg about bonuses or salary increases.

The counter-argument for the employee is that when a manager made such a promise, that promise was able to override the A4 contract about salary and the part about not being able to change the terms of the contact except in writing.

Does this argument work? It is unclear because caselaw goes both ways. The latest from the court of appeal is that such a clause doesn’t stop later oral agreements, but because of a technicality in the way that precedent works (this was an off-the cuff comment that didn’t impact on the court of appeal case itself), it is not binding at the employment tribunal level, so technically such a clause is binding and an employee with such a clause in their contract can’t rely on anything later agreed unless it is writing.

The message is that if the terms and conditions change, get that confirmed in writing. Not only will this be evidence on what was agreed (in a he-said, she-said scenario), but it will also defeat an employer’s argument that the agreement was invalid because it wasn’t in writing.

It will also defeat an employer’s argument that the manager’s promise wasn’t meant to be contractual since it wasn’t written down after they had previously agreed to make changes in this way (though there may be good reasons why parties agree an oral variation, such as where the employment became long-standing and informal over time or in an urgent situation.