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Variation clauses and T&Cs

School building Stock 000007464497XSmall 146x219The Employment Appeal Tribunal has considered whether a variation clause in a part-time teacher's contract allowed the school to impose a unilateral change to her working hours. Simon Lambert reports on the outcome.

In Hart v St Mary’s School (Colchester) Ltd UKEAT/0305/14 Mrs Hart was a learning support teacher at St Mary's School in Colchester. Her employment, which began in September 2001, was always on a part-time basis. The original letter of appointment did not specify fixed hours, simply stating that the post was envisaged to involve two days' teaching a week, with the details to be established at a later date, on the basis of mutual convenience. A contract of employment was to be entered into as soon as possible. A contract was eventually put in place for three days a week in March 2003.

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, and all the teachers apart from Mrs Hart agreed to the new terms. A major issue for Mrs Hart was that she needed to avoid working on Fridays, due to various family commitments.

Eventually the school insisted that the changes would be implemented from 1 September 2013 in reliance on a contractual provision in the contract which required the teacher to "work at such times as necessary, in the reasonable opinion of the headteacher, for the proper performance of her duties", and 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".

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On 3 September 2013, Mrs Hart resigned. She later claimed constructive unfair dismissal against the school. 

The employment tribunal found that Mrs Hart's contract had not been breached: there was no custom and practice that Mrs Hart would only ever work three days a week. The school had a contractual right to vary Mrs Hart's hours to fit the school timetable, and in doing so they consulted with her in good time, provided her with the business rationale for the changes and allowed her time to put forward proposals. They also found that she had not resigned in response to any repudiatory breach, but for other reasons.

Mrs Hart appealed to the EAT who found that the employment tribunal had misconstrued the contract of employment as conferring a unilateral power of variation on the school. The variation clause was not sufficiently clear and unambiguous to allow for unilateral variation. The EAT also overturned the tribunal's alternative finding that the teacher did not resign in response to any repudiatory breach, and remitted the case to the employment tribunal to address that issue. 

What this means for employers

This case, together with the others on changing terms and conditions covered in this newsletter, illustrate that very clear and unambiguous wording is required in the contract for the clause to amount to a power to unilaterally vary the contract. The power to unilaterally vary is an "unusual one" so employers should exercise caution when attempting to rely on variation clauses to make substantive changes.

A better approach for the school, when faced with Mrs Hart's refusal to agree to the new timetable, would have been to terminate the current contract and offer to re-engage her on clear new terms stating that she would be expected to work her hours over five working days, and reserving the right to change this in the future. Had she then submitted and won an unfair dismissal claim there would have been a good argument that she had failed to mitigate her loss and her compensation would have been much reduced. 

Simon Lambert is a partner at DAC Beachcroft. He can be reached on 0117 918 2085 or This email address is being protected from spambots. You need JavaScript enabled to view it..

 

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