Working Under Protest: Guide for UK Employers

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.

Working under protest is when an employee continues to perform their duties while formally expressing dissatisfaction with changes to their employment terms or working conditions. By doing so, the employee signals that they do not accept the changes in working terms, but are continuing to work to avoid being seen as accepting the new terms or resigning prematurely. In practice, this approach is often used when disputes involve salary reductions, role changes or other contractual amendments introduced without mutual agreement.

For UK employers, working under protest highlights the importance of clear communication and fair processes when implementing workplace changes. Ignoring or mishandling an employee’s protest can escalate disputes, potentially leading to claims of constructive dismissal or breach of contract.

In this guide, we set out what working under protest means for employers, with practical guidance on how to resolve disputes with employees relating to changes in working terms.

 

What does working under protest mean?

 

A ‘working under protest’ scenario can arise where an employee has lodged a formal grievance within the workplace, and they continue to work whilst preserving their right to take legal action against their employer. 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.

 

Need assistance?

 

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

 

What does working under protest mean?

Working under protest occurs when an employee continues to work while formally objecting to changes in their employment terms or conditions, such as a pay cut or change in role. It allows the employee to maintain their position without being seen as accepting the changes.

 

How does an employee formally work under protest?

An employee should notify their employer in writing, clearly stating that they are working under protest and outlining the reasons for their objection. This creates a record of their disagreement with the changes.

 

Can an employee claim constructive dismissal while working under protest?

Yes, an employee working under protest can claim constructive dismissal if they believe the employer’s actions represent a fundamental breach of contract. However, they must usually resign to pursue such a claim.

 

What should employers do if an employee works under protest?

Employers should address the employee’s concerns promptly, seeking to resolve the dispute through discussion, mediation, or other appropriate measures. Ignoring the issue can lead to legal risks, including tribunal claims.

 

Does working under protest affect an employee’s legal rights?

Employees retain their legal rights while working under protest. The formal protest serves to protect their position and ensure they are not seen as accepting any unfavourable changes.

 

Can employers enforce changes to a contract without agreement?

Contractual changes require the agreement of both parties. Implementing changes without consultation or consent may lead to legal disputes, including claims of breach of contract. Employers should follow proper procedures to avoid such risks.

 

How long can an employee work under protest?

There is no set time limit, but employees should act promptly to resolve the dispute or consider their next steps, such as seeking legal advice or pursuing a claim. Prolonged periods of inaction could weaken their position.

 

Glossary

 

 

Term	Definition
Working Under Protest	When an employee continues to work while formally objecting to changes in their employment terms or conditions.
Constructive Dismissal	When an employee resigns due to a fundamental breach of contract by the employer, such as unfair changes to terms.
Breach of Contract	A failure by one party to fulfil their obligations under an employment contract.
Employment Contract	A legally binding agreement outlining the terms and conditions of the employer-employee relationship.
Contractual Variation	A change to the terms of an employment contract, which typically requires mutual agreement from both parties.
Formal Protest	A written statement by an employee objecting to changes made by the employer while continuing to work.
Consultation	A process of discussion between employer and employees (or representatives) to agree on changes to employment terms.
Fundamental Breach	A severe violation of the employment contract that may justify an employee’s resignation.
Tribunal Claim	A legal claim made by an employee to an employment tribunal, often involving disputes over contracts or dismissals.
Mediation	A process of resolving disputes through a neutral third party facilitating discussions between employer and employee.

 

 

Additional Resources

 

Acas – Changing an Employment Contract
https://www.acas.org.uk/changing-an-employment-contract
Provides guidance on how employers and employees should handle changes to employment contracts, including disputes and objections.

 

GOV.UK – Employment Contracts and Conditions
https://www.gov.uk/employment-contracts-and-conditions
Explains the legal framework surrounding employment contracts, including employee rights when changes are proposed.

 

CIPD – Handling Employee Grievances
https://www.cipd.co.uk/knowledge/fundamentals/relations/grievances/factsheet
Provides practical advice for employers on resolving grievances and managing employee disputes effectively.