In Wandsworth London Borough Council v D'Silva (1998, IRLR 193) the employer altered a code of practice in relation to sickness. The Court of Appeal found that the code was not part of the contract but was simply meant to lay down good practice for managers. The language of the provisions in question was found not to provide an appropriate foundation on which to base contractual rights.
However, in the absence of variation clauses, Flexi-care may still contest "consent" by either any of the following: there was an express agreement between both parties; there was implied agreement through the conduct of the employees; termination of the existing contract and enforcement of re-employment under new contract. Express agreement refers to a voluntary agreement between Flexi-care management and the employees, whereas implied agreement means that the employees have consented to such changes by abiding by it for a long period prior to raising their concerns. As such, employees must ensure that they do not agree on any of the proposed contract variation during the upcoming meeting since express agreement may be done either verbally or in writing, and neither should they allow much longer time to seek for resolutions to their disputes.
Meanwhile, should Flexi-care management try to vary the contract terms but cannot get agreement from its employees, they can always terminate the contract and offer new contracts with the new terms and conditions. In Scott v Richardson (EAT April 2005 0074/04), the claimant was dismissed for refusing to accept a variation to their contract. The EAT said that the test was whether the employer reasonably believed that the changes to the contract were advantageous and it was not necessary for the employer to prove such advantages. This case highlights the low threshold that the employer must meet for the 'some other substantial reason' test for dismissal.
3. Citing The Information and Consultation of Employees Regulations 2004
The most feasible option for Flexi-care employees is to seek for a consultation by citing the Information and Consultation of Employees Regulations 2004 (The Information and Consultation of Employees Regulations 2004).
Employee representatives must begin the process by requesting for data from Flexi-care management regarding the total number of employees in the company. Under Part II, Section 5 (Employee Numbers And Entitlement To Data) of the Information and Consultation of Employees Regulations 2004, "an employee or an employee representative may request data from the employer for the purpose of determining the number of people employed by the employer's undertaking". This data shall be the basis in determining how many employees constitute 10% of the total population, since as stated in the same Regulation, Under Part III Section 5 (Negotiations), "an employee request is not a valid unless it consists of'a single request made by at least 10% of the employees concerned; or unless it is a number of separate requests made on the same or different days within a period of six months by employees which when taken together totals to at least 10% of the employees.
Requests for consultation must be forwarded by the employees either to the Flexi-care management or to the Central Arbitration Committee (CAC). The CAC is a permanent independent body with