There has been a raft of Employment Tribunal cases of late considering the issue of flexibility clauses contained in employment contracts. It is common to include clauses reserving the power to amend certain terms, such as the right to change the employee’s location of employment, or a right to change holiday allowance, or even a right to reduce salary. The general rule is that such a right must be spelt out in clear and unambiguous terms in order to have any chance of being enforced. It is generally accepted that a more general right to vary a contract upon notice will rarely be enforced as it will be considered too wide reaching and unfair and not in the parties’ minds when the contract was originally agreed.

The issue was considered recently in the case of Sparks and others v Department for Transport [2015] EWHC 181.  In this case, the High Court held that terms relating to attendance management were apt for incorporation into employees’ contracts and could not be unilaterally altered by the employer despite a general clause permitting “changes” to staff contracts.

Another recent case is Norman and others v National Audit Office UKEAT/0276/14. In this case, the Employment Appeal Tribunal found that an Employment Tribunal had been mistaken in concluding that a term in the letters of appointment of Ms Norman and others enabled the employer to vary the contract unilaterally as the term was unclear and ambiguous. Clause 2 in the offer letters provided: ‘detailed particulars of conditions of service … are subject to amendment; any significant changes affecting staff in general will be notified…’ followed by notification details.

The Employment Appeal Tribunal held that the words ‘subject to amendment’ established nothing more than the fact of amendment and the need for notification.  They did not in any way establish what the mechanism of amendment might be.  Again, this case proves a useful reminder of the importance of ensuring that any right to vary is as specific as possible and unambiguous. General flexibility clauses should not be used and relied upon to make any significant contractual changes.

Also decided this month is the case of Hart v St Mary’s School (Colchester) Ltd UKEAT/0305/14, the Employment Appeals Tribunal again decided that a clause purporting to reserve to the employer the right to vary the contractual terms did not confer upon the employer a unilateral power of variation.  In this case, Ms Hart, a part-time learning support teacher, worked three days a week. Following a timetable change she was required to work part time over five days and the School relied on two clauses; one (clause 1.4) which stated that ‘the fractional part …may be subject to variation depending on the requirements of the School Timetable’ and the other stating that the teacher should work all hours as may be necessary in the reasonable opinion of the principal for the proper performance of her duties. The Appeal’s Tribunal held that this provision allowed for some variation but not for a substantial unilateral variation. Further, the words in clause 1.4 were not sufficiently clear when looked at in context. The imposition of a five day working week was found, therefore, to be a repudiatory breach on the part of the employer.