“Subject to Variation” terms in Employment Contracts are not a Carte Blanche for Employers

There have been numerous cases concerning contractual provisions that purport to give employers a unilateral right to vary terms of employment. Time and time again, the decisions have shown that merely stating that terms are “subject to variation” will not normally be sufficient. The recent case of Hart v St Mary’s School (Colchester) Ltd UKEAT/0305/14 has provided further confirmation that employers attempting to impose changes pursuant to a variation clause may find themselves in difficulty.

Mrs Hart was a teacher at the school and was employed on a part-time basis, three days a week. She did not have contractual fixed hours but her contract did require Mrs Hart to work at such times as necessary, in the reasonable opinion of the headteacher, for the proper performance of her duties. There was a further clause which stated that, for part-time staff, working hours may be “subject to variation, depending upon the requirements of the school timetable”.

In 2013 the school decided to change its timetable so that particular core subjects could be taught in the mornings. This required some changes to working hours, and Mrs Hart was invited to spread her working hours over five days, rather than three. A consultation process followed, but the parties could not reach any agreement. Mrs Hart did not want to work on Fridays, in particular, due to family commitments. The school’s insistence on the changes resulted in Mrs Hart resigning and raising a claim for constructive dismissal against the school.

The Employment Appeal Tribunal found that the school’s imposition of the change to Mrs Hart’s working hours constituted a breach of her employment contract; the variation clause was not sufficiently clear or unambiguous to allow for unilateral change.

This case re-affirms the point that although employers often reserve a general right to vary the contract, tribunal will rarely enforce such clauses. Caution should be exercised by employers seeking to rely on variation clauses to make significant changes.

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