Changing employment agreements and Covid-19

April 1, 2021



Brittany Gibson - Principal, Treadwell Gordon


Brittany Gibson

Changing employment agreements and Covid-19

In a quickly changing world, it is difficult to ensure that employment arrangements stay relevant and continue to meet the varying needs of businesses. It is common for employers to want to amend the various terms and conditions of an employee’s employment to better suit their circumstances or when a new issue arises – perhaps hours, wages, location of work , or the need to be vaccinated following a pandemic.

The problem for employers is that they cannot simply amend or introduce new clauses in employment agreements without the employee’s consent. This would be considered a unilateral change of employment terms and conditions, and is illegal. An employer may propose changes, but an employee must also agree to those changes to make the changes enforceable.

Yet, not all changes an employer wishes to make are classified as amendments to employment agreements. Employers have a right to manage their business as they see fit, and there are a variety of other ‘policy decisions’ which don’t require employees’ consent. Policies could include flexible working, health and safety procedures, computer/cell phone usage or company vehicles. Best practice in introducing a policy is to propose the policy, seek feedback on it, consider if any of the feedback can be incorporated into the policy, and then decide whether it should be implemented.

The difficulty is distinguishing between terms and conditions of employment and policies. Employers should consider matters such as whether the provision is a critical or protected term (e.g. hours, wages), if it was discussed with the employee before they came on board (e.g. company vehicles), if the request is being made in good faith, or how much the employment arrangement will change because of the change.
As the Covid-19 vaccines roll out, whether employers can introduce requirements for employees to be vaccinated will vary depending on whether the employee is a new employee or existing employee, and the nature or risk of exposure of that employee’s role.

For new employees, an employer may want to make it a condition of employment that the employee will receive, and stay up to date, with all vaccinations. This could be enforceable where the position which the employer is advertising is at particularly high risk of being exposed to Covid-19. However, it will not be appropriate to make this a general term of employment for any new employee, no matter what their position in the business or where there is not a sufficient level of risk exposure. This could easily be considered discrimination on the basis of ethical belief and a breach of the Human Rights Act.

For existing employees, who already have agreed terms and conditions of employment, employers cannot unilaterally require individual employees to be vaccinated. It may be that employees are happy to consent to this new term and condition of their employment. Alternatively, employers could introduce new policies whereby specific positions, or responsibilities, within the company need to be performed by an employee who is vaccinated. In making this determination, employers need to do a rigorous health and safety assessment and consult with all employees before introducing any policy. In good faith, and after a proper consultation process, it may be that employers need to make changes to an unvaccinated employee’s duties for health and safety reasons – whether that means moving the employee to a different role or simply passing on a few specific parts of their role to another employee. As with any significant change to employees’ employment, employers would be wise to seek legal advice before making any decision.