Before you change any aspect of an employee’s job or role, you need to determine whether you are permitted to make the change under the terms of their employment contract.
When working out whether an employment contract permits you to change a job or role, you must take into account what a ‘reasonable’ person in your position and in the employee’s position would consider the contract to say having regard to:
- the actual words of the contract;
- the surrounding circumstances known to the employer and the employee; and
- the purpose of the employment.
If the employment contract entitles you to make changes to an employee’s job or role, the change must not be made in an unreasonable or capricious manner. This means there must be a sound reason for changing the employee’s job or role.
But what can you do if a contract does not permit changes to the employee’s role?
If the contract does not permit you to alter the employee’s role, you will need the consent of the employee to vary the contract or create a new contract.
An employee can give their consent to a change of job or role by:
- telling you they accept the change; or
- indicating their acceptance in writing by email; or
- signing a letter of variation or new employment contract.
An employee can also provide their consent implicitly by attending work in the new job or role without objection. This type of consent requires that the employee has been informed about the change.