Alex Leonhardt
Alex Leonhardt reflects upon a recent Central London Employment Tribunal case which raised questions about contractual variation in employment law, the limits of employers’ powers, and the distinction between affirmation and acquiescence.
In Sogbodjor v WKCIC t/a Capital City College Group 2219358/2024 I represented the claimant in his successful claim against his former employer for constructive dismissal, instructed by Matthew Fletcher of Kilgannon & Partners. The judgment is not yet available on the Tribunal website.
The basis of the case was straightforward: Mr Sogbodjor had been employed to coordinate sports provision at a group of further education colleges. His former employer had purported to change his job title following a consultation process (of sorts) as part of a restructuring process, under which he was to have a wider and more generalised remit of coordinating both sports and other extra-curricular activities.
The difficulties for the Respondent were that there was no contractual variation clause in the contract of employment, Mr Sogbodjor’s job title which referred to “sports” was specified in that contract, and Mr Sogbodjor liked his existing (more specialised) job and wanted to keep it.
Mr Sogbodjor never expressly consented to any change in his contract. In fact, he repeatedly objected to the change and explained to his employer why he thought they were wrong about the contractual position. He carefully walked a tightrope in fulfilling the contractual requirements of his actual job description to work flexibly to support colleagues, while not implicitly accepting a change to his contractual duties by carrying out the wider duties of his “new” job description.
Nonetheless under the impression that his contract had been varied, the Respondent proceeded to spend almost three years putting pressure on Mr Sogbodjor to comply with his new job description through various means. At the final hearing, the Respondent placed reliance upon two ultimatums given to Mr Sogbodjor, in which it told him that if he continued to work after a particular date, it would show his acceptance of the new role.
Following a final written warning for not fulfilling the duties of his new job, Mr Sogbodjor resigned.
A claim of constructive dismissal was brought based upon a breach of the implied term of trust and confidence, rather than a breach (or anticipatory breach) based directly on the Respondent’s understanding of the contractual terms: the case was based upon the Respondents actions caused by its mistake about the contractual position, rather than the mistake itself.
Affirmation and Acquiescence
The natural instinct for employment lawyers in such a case, faced with such a lengthy period in which the employment relationship continued, might be to assume that such a divergence in views as to the fundamental nature of an employee’s job cannot exist in perpetuity and – at some point – an employee’s job becomes that which his employer is in fact offering to him, and which they accept by continuing to work even if they express objections to it. At some point, it is tempting to think, the old job ceases to exist, and the employee therefore cannot have a contract to perform it – particularly when an employer has repeatedly and expressly communicated that it is the new job that is available to an employee.
That would be, however, a mistake, based perhaps on two misapprehensions.
Firstly, while the law of affirmation clearly is significantly based upon the passage of time over which an employee continues to accept employment (among other factors – see the recent EAT case Barry v Upper Thames Medical Group & Ors [2025] EAT 146), the law of affirmation and that of acquiescence as to a variation in contract are quite distinct. The fact that Mr Sogbodjor had not resigned sooner in response to previous breaches which arose from disputes about the contractual terms did not change the reality of what the contractual terms were.
Secondly, while the nature of the employment relationship is inevitably a hierarchical one where an employer is given authority over the day-to-day conduct of the employment relationship, as contracting parties they are (at least theoretically) equals. The fact that a contract gives an employer authority over the employee while in employment, and so authority over how the contract is executed in practice, does not mean they have any particular authority over the content or meaning of the contract itself. Mr Sogbodjor’s former employer may have thought his job was his new job, but that doesn’t make it the case.
Solectron and Abrahall
The Tribunal considered the authorities of Solectron Scotland v Roper and Ors [2004] IRLR 4 and Abrahall v Nottingham City Council [2018] IRLR 628, on the question of implied acceptance of a variation of contractual terms, and particularly the relevance of an employee continuing in employment.
In Solectron, Elias J (as he then was) considered whether employees were entitled to the benefit of a contractual redundancy policy, in circumstances where the Respondent argued that a new (less favourable) policy had been accepted by them by their continued employment. He put the “fundamental question” in such cases as follows: “is the employee’s conduct, by continuing to work, only referable to his having accepted the new terms imposed by the employer”. In circumstances – like in that case – where a purported variation doesn’t require or invite any response by an employee, he noted that “if the employee does nothing, his conduct is entirely consistent with the original contract”. Where there is an immediate practical impact (such as in reductions in wages), continued employment without protest is likely to constitute acceptance of the change “after a period of time”.
Abrahall concerned a case where employees had continued to work after a reduction in pay. Underhill LJ emphasised that the question is one depending upon the facts of the case (including whether continuing to work is reasonably explainable otherwise than by inferring an acceptance of a change of contract). He identified, but did not directly address, the potential difficulty which arises from trying to determine when sufficient time has passed that an employee’s continued employment can only be explained by him or her having accepted a variation in terms
Conclusions
My own view (unlikely to be tested in the facts of any given case) is that such a non-acceptance can at least theoretically continue in perpetuity, in circumstances where:
• The employee continues to expressly object;
• The employee does not act in such a way as to implicitly accept the terms (such as, in this case, by performing the duties of the new job); and
• Neither party terminates the contract and/or accepts the repudiatory conduct of the other.
The situation can exist in perpetuity for the straightforward reason that an employer can simply be wrong about the contractual position in perpetuity, just as an employee can be, and there is no principled reason for considering that an employer’s beliefs about the contents of the contract are more authoritative, such that they come true after a period of time.
Mr Sogbodjor’s case was an unusual one. It arose from an employee who was firm in both his intentions and his view of his contractual rights, and an employer who was incorrect about the contractual position for a prolonged period and, perhaps for that reason, didn’t at any point go through a process to “fire and re-hire”.
It goes without saying that the outcome might have been very different had there been a contractual right to vary terms, if the job title had not been specified in the contract, or if Mr Sogbodjor had capitulated and started to work under the new job description. In such a situation express protest might, after three years, have been regarded as empty ones.
However unusual the facts of this case it does however, provide some useful lessons.
Firstly, in ensuring that one thinks clearly about the contractual underpinning of the concepts of employment law – and in particular, in this case, the different effects of continuing in employment when considering affirmation following a breach versus acquiescence to a variation.
Secondly, while it is well accepted that Tribunals will tend to look at the “facts on the ground” rather than the empty letter of an employment contract, and those facts are so often largely determined by an employer, contractual terms can be stubborn things.
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