Employment Tribunal: Changing working hours

22 April 2015

Can schools rely on contractual clauses when changing working hours?

Simply carrying out a proper consultation process may be insufficient if the contractual wording is imprecise.

With thanks to Michelmores for providing the details of this case.

Under the basic principles of contract, changes to employment contracts must be mutually agreed between an employer and an employee to be enforceable. However, employers often include wording in contracts which aims to reserve the right for the employer to make unilateral changes to terms and conditions. In the recent case of Hart v St Mary’s School (Colchester) Ltd UKEAT/0305/14, the Employment Appeal Tribunal (EAT) considered whether a variation clause in a part-time teacher's contract was sufficient to allow her school to unilaterally change her working hours.

Mrs Hart had been employed since 2001 and worked for 3 days a week. In 2013, the school decided to change its timetable so that core subjects were taught in the morning. It commenced a consultation process with Mrs Hart to change her hours, so that she worked the same total number of hours, but instead spread over 5 days. The school provided her with clear business reasons for making the change and allowed her time to put forward alternative proposals during the consultation process. However, the parties were unable to reach agreement and eventually the school insisted on the change to working hours commencing in September 2013, relying on the following clause in her contract:

"During School term time...the Teacher shall work all School hours while the School is in session and at any other time (including during School holidays, at weekends and before and after the School’s normal starting and finishing times) as may be necessary in the reasonable opinion of the Principal for the proper performance of his/her duties.”

Mrs Hart resigned and claimed constructive dismissal.

Initially, the employment tribunal rejected her claim, noting that the school had consulted appropriately and had a contractual right to require flexibility over Mrs Hart's hours. Mrs Hart appealed, maintaining that it was necessary to have regard to the implied term of mutual trust and confidence and argued that a contractual right to unilaterally increase a part-time worker's hours conflicted with the nature of a part-time contract.

The EAT agreed with Mrs Hart and considered another clause in Mrs Hart's 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".

The EAT held that the wording "may be subject to variation" was not sufficiently clear and it could be that this was intended to apply to a request from Mrs Hart to vary her hours, confirming that the school was only obliged to agree a variation subject to the requirements of its timetable.

Whilst it was already clear that tribunals would scrutinise contractual wording very closely, this decision serves as a reminder that variation clauses will only be upheld rarely and will need to be drafted very clearly and unambiguously. If a school considers that it may need to change a teacher's hours, it should give careful consideration to the circumstances when this might apply and include as much detail as possible in its contracts. Simply carrying out a proper consultation process may be insufficient if the contractual wording is imprecise.