In the case of Wess v Science Museum Group [2014], the EAT considered whether an employee had accepted a change to her terms and conditions of employment by continuing to work  for a period of nine years without expressly objecting to the change.  

Ms Wess was employed from 1979.  Following a restructuring exercise in 2003 she was offered a new, lower grade position.  When she originally wrote to accept the new position, she expressed that this was on the understanding that her other terms and conditions would remain the same.  

Subsequently, she was sent an entirely new contract which contained a notice period of 12 weeks which was a reduction from her previous notice entitlement of six months.  Ms Wess did not sign the new contract.  Although she appealed against the grading of her new position (which led to it being re-graded and her being given a different title) she did not object to the different terms, particularly regarding notice.  

In  the earlier case of Jones v Associated Tunnelling Co Ltd [1981] it was held that Tribunals should treat with caution the argument that an employee has impliedly accepted, by conduct, a new term which has no immediate effect and which has been unilaterally imposed by the employer. The conduct in almost all such cases will be  the employee continuing to work without express protest about the new term(s).   

Ms Wess argued that she did not understand the initial letter stating that her terms and conditions  had changed,  that she had never signed the new contract, and that the notice period provision did not have any immediate practical impact on her. Taken together, this meant that she had not accepted the contractual variation to her notice period.  

The company, however, argued that Ms Wess was issued with a brand new contract and she had agreed to the job description which was part of that contract.  It had not been open to Ms Wess to accept  some parts of the contract but refuse to accept other parts  by remaining silent  for nine years before raising any objection.  

The EAT  held that this case was about more than a simple unilateral change of one term of and employment contract (as in the Jones case, which was about a mobility clause); it involved the introduction of an entirely new contract.  The EAT found that some of those terms plainly had an immediate impact on Ms Wess as she undertook a new role, and pay protection arrangements were introduced.  The EAT also felt that a notice period could have immediate impact of sorts as it impacts on job security.  

In considering whether Ms Wess had accepted the change, the EAT took into account that, although Ms Wess had expressly raised an objection to part of the new package, by appealing against the grading of her new position, she had not objected to any of the changes to the other terms and conditions.  Nine years had passed from the time that the new contract was introduced until the time that Ms Wess was made redundant and it was not until she was made redundant that she decided to object to this particular change to her  contractual terms.  In considering the length of time during which Ms Wess did not object, the EAT took into account that Ms Wess had a trade union role, and was, therefore  a person who would be expected to have regard to and knowledge of the detail of the terms and conditions in question, and to raise queries if they arose.   

Although the EAT considered that mere delay might be a neutral factor in deciding whether or not an employee has accepted a  variation to a contractual term, this case involved more than  a unilateral change to one term.  Ms Wess had been offered a new job on a new contract.  She could not cherry pick between the old and new contracts.  In the circumstances of this case, the EAT found that the Tribunal was entitled to find that Ms Wess had impliedly accepted the terms and conditions, including those relating to notice.  

This case will give some comfort to employers, but it is an important reminder that, to avoid any disputes about whether or not an employee has impliedly accepted  changes to their terms and conditions of employment, employers should always ensure that employees actually sign and return  varied contractual terms  as irrefutable evidence that they have been accepted.