02 MAR 2015
Contractual flexibility clauses where changes to working hours or patterns are envisaged
Associate, Veale Wasbrough Vizards
The case of Hart v St Mary's School (Colchester) Ltd considers the importance of clear drafting of contractual flexibility clauses where the need for flexibility in working hours or patterns is anticipated.
St Mary's School wished to change the working hours of a part-time learning support teacher, Mrs Hart, to accommodate the School's proposed timetable alterations. Mrs Hart worked three days a week and the change was to spread her working hours over five days. St Mary's School consulted with Mrs Hart but an agreement could not be reached. Mrs Hart stated that she could not work on Fridays due to family commitments. When discussions failed, St Mary's School implemented the changes unilaterally.
Mrs Hart resigned and brought a claim for unfair constructive dismissal.
The relevant provisions of Mrs Hart's contract of employment stated:
"In the case of the Teacher on a part-time contract the fractional part will be notified separately and may be subject to variation depending upon the requirements of the School Timetable."
"During School term time, except as may otherwise be provided for under [clause 1.4 above], the Teacher shall work all School hours while the School is in session and at any other time (including during School holidays, at weekends and before and after the School’s normal starting and finishing times) as may be necessary in the reasonable opinion of the Principal for the proper performance of his/her duties."
The Employment Appeal Tribunal (disagreeing with the Tribunal) found in Mrs Hart's favour that the contract did not contain all the contractual terms and that had been agreed with Mrs Hart, specifically that she would work three days a week. Furthermore, the phrase "may be subject to variation depending upon the requirements of the School Timetable" permitted some variation after the initial notification of hours, but did not allow for entirely unilateral variation. Both parties could ask for variation but it would still have to be subject to the requirements of the timetable. The school could refuse a teacher's request for a variation and vice versa.
We recently reported that a well drafted flexibility clause provides a good starting point from which to manage expectations surrounding proposed changes to employee terms.
Last week, Norman and others v National Audit Office demonstrated that unless a proposed change is minor, a general flexibility clause alone is unlikely to be sufficient justification for the imposition of a unilateral change and a full consultation procedure should be followed. Hart v St Mary's School takes this position further, highlighting the importance of clear and unambiguous contractual drafting.
Where employers envisage that they will want to make specific and/or foreseeable changes to working hours or patterns then this should be explained to the employees and set out as specifically as possible in the contractual documents and then reflected in practice. Employers will find it more straightforward to impose such changes if the need for flexibility is understood at the outset and there is a regular review process.