David Ward: "Changes to an employee’s contractual terms and conditions should be mutually agreed"

Terms and conditions apply

Disputes over changes in working hours and obligations show schools need to understand employment contract law, says David Ward

Posted by Stephanie Broad | November 11, 2015 | Law, finance, HR

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Once HR has made time to draft it, most teachers will be provided with a contract of employment (contract). The contract should clearly outline an employee’s duties, together with their respective contractual and statutory rights, in accordance with the Employment Rights Act 1996.

Beyond this, employment issues in schools can sometimes be dealt with in a manner not entirely consistent with established practice. It is not unheard of for teachers to go without contracts for the duration of their employment. Equally, reasonable adjustments may not be offered to disabled employees or, alternatively, disabled employees may push for unreasonable reasonable adjustments. On the other hand, some teachers can become extremely territorial over their classrooms or the age groups they will agree to teach.

Teachers (together with university and college lecturers and most education support staff) are niche employees due to their somewhat irregular contractual terms. Teachers are frequently asked to carry out work beyond their contractual remit, ranging from covering lessons, planning all weekend and helping with extra-curricular events. The reaction of many people is usually “... but they get great holidays”.

A vital principle of contract and employment law is that changes to an employee’s contractual terms and conditions should be mutually agreed. This is an understandable position for the law to adopt. In Wandsworth LBC v D’Silva (1998), it was held that any contractual right of an employer to attempt to make a unilateral variation of an employment contract (a variation clause) must be stated in clear, unambiguous terms. Notwithstanding this, Lord Woolf (hearing the case) referred to such a power as “unusual”. Since then employers have frequently tried and failed to impose significant unilateral variations on their employees by relying on variation clauses. It is now generally accepted that such clauses are of little practical use. That doesn’t stop employers regularly trying to enforce them, though.

The recent case of Hart v St Mary’s School (Colchester) Ltd (2014) has shown that schools are still inclined to test the limits of the express contractual variation clause. Mrs Hart had worked at St Mary’s School Colchester as a learning support teacher on a part-time basis for over 10 years (starting in September 2001). During this period her general working hours altered over time (with her consent). Her original letter of appointment did not specify fixed hours and started on two days’ teaching a week. Mrs Hart received a contract in March 2003 confirming that, by then, she worked three days a week. Following an overhaul of the timetable in 2013, the school asked Mrs Hart to spread her working hours over five days so that particular core subjects could be taught in the mornings. Whilst subsequent consultation did take place, Mrs Hart made clear that she could not work on Fridays due to important family commitments. Despite this, the school implemented the new timetable from September 2013 and Mrs Hart was forced to resign (reserving her right to claim constructive unfair dismissal).

The contract contained the following clause: “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.”

Although unsuccessful at first instance (due to the tribunal finding in favour of the school’s variation clause and holding that her hours had not been determined by custom and practice), HHJ Hand ruled on appeal that the school had repudiated Mrs Hart’s contract and that the variation clause could not be relied upon (as it was not sufficiently clear or extensive) to unilaterally vary the contract permanently.

All employers should exercise caution when exercising contractual rights to vary terms and conditions and this of course includes schools, colleges and universities. Most examples of enforcement of variation clauses that reach the employment tribunal are unsuccessful. This reiterates a basic principle of contract law – contracting parties should consent to permanent variations.

David Ward, Blacks Solicitors: www.lawblacks.com