Tips for Employers: getting your own way and how to stop making stupid mistakes - Goldenleaver
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Varying a contract of employment should be one of the simplest tasks.  Apparently it isn’t.  It seems that there’s no limit to the number of ways to get it wrong.

Hot on the heels of my last comment on this topic in Wess v. Science Museum Group – where the employer got it right – are three more cases that focus on the same topic, but where employers seem to have ignored their basic contract law and public sector employers have wasted public funds by having their decisions proved wrong:

In Sparks v. Dept for Transport the DfT introduced a new trigger for the number of absences that sparked an official absence management process.  But the court found that the current trigger was incorporated into the employees’ contracts of employment (i.e. it wasn’t in a variable policy) so the DfT could only make changes if that change was not detrimental.  In fact the new figure would have been detrimental to the employees, so the old trigger was reinstated.

In Norman v. National Audit Office the NAO reduced paid sick leave and privilege leave by relying on a general flexibility clause and on the words “They are subject to amendment”.  The Tribunal agreed that the NAO could do this, because there had been extensive negotiations before the changes had been made.  But the EAT disagreed and said the words weren’t precise enough to cover the methodology for making any change that was then notified to employees.

In Hart v St Mary’s School (Colchester) Ltd  the school imposed a change to Ms Hart’s working hours that required her to spread her hours over 5 days, not 3 days.  This was done by relying on a contractual provision that required staff to work at such times as necessary for the proper performance of their duties and that working hours of part time staff were “subject to variation, depending upon the requirements of the school timetable”.  But neither of these provisions worked, and the EAT found that the school had breached Ms Hart’s contract.

So in each of these three cases, the employer lost; and should have known better.  Was this due to being inept?  Was the change a calculated try-on?  We’ll never know. But what we do know is this: 

  1. Employers who state in an employment contract that terms in a staff handbook are part of the employment contract should clarify which terms are intended to be contractual and which are not.  Generally it’s better to use a completely non-contractual staff handbook, which will be easier to vary;
  2. Employers will find it difficult to rely on a general right to vary clause; and
  3. General flexibility clauses tend to be used only to make minor administrative changes, or to vary contractual provisions with which the employer is required to comply.

When will these lessons be learned?  When will public sector employers not waste public money by having their decisions proved wrong in the tribunal system? The answer is easy:  if you want to avoid getting it wrong, come to us at Golden Leaver; we know what we’re doing.

Wyn Lewis