Using flexibility clauses wisely

Flexibility clauses are commonly included within NHS employment contracts, as they are in most sectors. This article by Andrew Davidson from Hempsons discusses how caution ought to be exercised by managers when relying upon flexibility clauses and provides managers with some helpful tips.

With the seven-day services initiative and other organisational changes taking place throughout the NHS, the requirement to make changes to employee terms and conditions is becoming more prevalent.

In the recent case of Hart v St Mary’s School (Colchester) Ltd UKEAT/0305/14, the EAT has assessed the extent to which an employer may unilaterally impose a change to an employee’s terms and conditions, where there is a flexibility clause. The case emphasises the importance of a carefully drafted flexibility clause, and ensuring that this is reviewed before any changes are proposed/imposed.

In this case of constructive unfair dismissal, Ms Hart was a part-time teacher who worked three days per week. Without her consent, her employer changed her working hours to span over five days, for the same number of hours per week.
Her employer relied on the following clauses within her contract:

"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."

It was found that this clause did not permit the school to unilaterally vary the hours to be worked. The EAT took the view that a request to change could be made by both the teacher and the school and, because the school could, in its view, refuse a request to change so could the teacher. This is perhaps not the most obvious reading of the clause and almost certainly not what the school intended!

It was stated that the change to the hours was a fundamental change to the contract as it significantly altered the working arrangements, and that the manner in which the change had been made, was a breach of the implied term of trust and confidence.

Top tips for reliance on flexibility clauses:

1. Ensure that the clause is drafted in a way which makes it clear that the employer has the right to vary, without the consent of the employee.

2. Before making any changes to a contract, check whether there is a flexibility clause within the contract which enables you to make the change without consent.

3. If you are relying upon a flexibility clause to make a change, ensure that the scope of the clause is wide enough to enable the change intended.

4. Exercise caution where the wording could be construed as ambiguous; if the wording is unclear, it is likely to be interpreted against the party seeking to rely upon it.

5. Just because there is a flexibility clause enabling you to make the change, does not mean that you should always use it. Discussion and agreement with the employee/ Trade Union/ employee representative may be the most appropriate way forward and will assist in maintaining good employee relations.

6. Keep the collective consultation obligations under TULRCA in mind and ensure compliance, where is it envisaged that the proposed changes may result in a dismissal.

7. If you are unilaterally imposing a change and relying on a flexibility clause, ensure that change is imposed in a reasonable and considerate manner; there may still be a risk of breaching the imposed duty of mutual trust and confidence if an employer imposes a permissible change unreasonably.

8. Finally and most importantly, where changes are required, contact your HR team for advice and support.

Andrew Davidson, Partner, Hempsons Employment North