Employers look for some ‘wriggle room’ in contracts by including ‘flexibility clauses’ when issuing contracts of employment.

These are express terms in a contract which can enable employees to make changes to an employee’s terms and conditions.

Flexibility clauses can be specific such as dealing with defined issues, such as working hours, or be used more generally to change a contract in ways an employer may not have predicted.

What about Consent?

An employer may not vary the terms of a contract without the consent of an employee.  However, if a contract already has a flexibility clause in it, then it could be said that the employee has already given consent for changes.

However, it is not wise to simply vary a contract even if it does have a specific flexibility clause in it which seems to give an employer the power to make the change as employers need to be reasonable in the changes they make in using flexibility clauses and case law suggests that tribunals and courts commonly place a narrow interpretation on what such clauses allow. Either way, legal advice in such matters is always a good idea.

Still necessary to consult

Employers should consult employees on the intended change – a failure to do so could be considered a breach of trust and confidence implied in the contractual relationship between the two, and may lead to claims of breach of contract or constructive dismissal.

Employees may have concerns about a change, and employers should take these on board and seek to resolve problems or find routes to a compromise before implementing a change, even if it is provided for by the contract.

Involving employees makes good business sense, as it drives up levels of employee engagement and motivation – and finding a compromise in a difficult situation is the best way of preserving good employment relations at work.