• Facebook
  • Twitter
  • LinkedIn
Call us now: 01243 836 840   [email protected]
Pure Employment Law
  • Who We Are
    • Nicola Brown
    • Peter Stevens
    • Elena Elsam
    • David Jones
    • Linda Nye
    • Brenda Cherry
  • For Employers
    • Advice on HR and People issues
    • Investigations, Hearings and Appeals
    • Restructuring and Redundancy
    • Defending Employment Tribunal Claims
    • Dismissal of Senior Executives
    • Contracts, Handbooks and Policies
    • Employment Law Training
  • For Employees
    • Settlement Agreements
    • Workplace Issues including Disciplinary and Grievance
    • Bringing an Employment Tribunal Claim
  • Employment Law Events
  • Legal Updates
  • Testimonials
  • Vacancies
  • Contact us
  • Search
  • Menu Menu

Flexibility clauses – how effective are they?

26th February 2015/in News /by Nicola Brown

Nowadays it is fairly common to see a ‘flexibility clause’ in employees’ terms and conditions of employment. The idea of these is to give the employer the ability to make changes to the terms where necessary. However, in the recent case of Norman and others v National Audit Office, the Employment Appeal Tribunal (EAT) looked at how effective such clauses are in practice and when employers can rely on them to make changes without agreement from employees.

The general rule with any contract is that a change to the terms can only be effective when it is agreed by both parties, and that is still the case with employment contracts. However, in the 2010 case of Bateman v Asda (covered in our previous article here) the EAT found that Asda could rely on a flexibility clause in their staff handbook as a basis for introducing contractual changes. That case was undoubtedly influenced by the fact that before relying on the clause Asda had engaged in a lengthy period of consultation to try to agree the changes before resorting to imposing them via the clause.

In the Norman case, the NAO tried to introduce changes which included reducing the amount of sick pay. The wording of the provisions they relying on was found not to be sufficiently clear as to amount to a flexibility clause, and it used language like ‘notify’ which indicated only that employees would be informed about changes, not that the employer had the right to make them without consent.

The NAO had also relied upon a clause dealing with how disputes should be resolved, which the NAO said showed that they had followed the right process by trying to agree the changes with the union and then, when that failed, implementing them. However, the dispute resolution section only allowed unilateral changes where it was ‘essential to the operation of the NAO’ and the EAT found that the changes did not meet this test.

The 80 employees who had brought claims therefore succeeded in their claims for breach of contract and the EAT restored their original terms and conditions.

So where does this decision leave other employers and their flexibility clauses? In reality it will be very unusual for employers to be able to rely solely on a flexibility clause if the changes being made are to their employees’ disadvantage. They are more likely to be successfully used for less significant changes.

It is important to remember that if you do try to rely on a flexibility clause, it will be carefully examined in Tribunal and there is a risk it will not be effective, so it is generally best to try and consult and agree changes first where possible. As the Bateman v Asda case showed, in order to successfully rely on such a clause, the wording must be ‘clear and unambiguous’, which means more than just saying that the terms are subject to change or that employees will be notified of any changes.

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

 

Share this article
  • Share on Facebook
  • Share on Twitter
  • Share on WhatsApp
  • Share on LinkedIn
  • Share on Reddit
  • Share by Mail
https://www.pureemploymentlaw.co.uk/wp-content/uploads/2019/02/Pure-Employment-Law-logo.jpg 0 0 Nicola Brown https://www.pureemploymentlaw.co.uk/wp-content/uploads/2019/02/Pure-Employment-Law-logo.jpg Nicola Brown2015-02-26 23:41:132015-06-02 01:43:09Flexibility clauses – how effective are they?

Join our mailing list

* = required field
Mailing Lists


Recent Legal Updates

  • What to expect during 2021 – employment law developments 21st January 2021
  • Did “office banter” about an employee’s memory amount to age discrimination? 21st January 2021
  • Update on Furlough 20th January 2021
  • Restricting Restrictive Covenants? 20th January 2021
  • Q&A: What to expect from a remote Tribunal hearing 20th January 2021
Link to: Contact Us

Any questions? Why not get in touch!

Our advice is always given in plain English without any waffle, and we focus on providing practical solutions to our clients’ problems.

Contact us

LEGAL INFORMATION

Pure Employment Law | 1 Little London, Chichester, West Sussex, PO19 1PH
[email protected] | Tel: 01243 836840

Pure Employment Law is the trading name of Pure Employment Law Limited, registered in England and Wales with company number 07134294 and whose registered office is 1 Little London, Chichester, West Sussex, PO19 1PH. Pure Employment Law Limited is authorised and regulated by the Solicitors Regulation Authority with registration number 533794. A list of the company’s directors is available for inspection at the registered office

DISCLAIMER

The information contained in this website is for general information purposes only. The information is provided by Pure Employment Law and while we endeavour to keep the information up to date and correct, we make no representations or warranties of any kind, express or implied, about the completeness, accuracy, reliability, suitability or availability with respect to the website or the information, products, services, or related graphics contained on the website for any purpose. Any reliance you place on such information is therefore strictly at your own risk.

Privacy Policy | Cookies Policy | Terms & Conditions | How to make a complaint | Sitemap

© Pure Employment Law 2021

Scroll to top

This site uses cookies. By continuing to browse the site, you are agreeing to our use of cookies as defined in our cookie policy.

Accept Cookie Policy

Cookie and Privacy Settings



How we use cookies

We may request cookies to be set on your device. We use cookies to let us know when you visit our websites, how you interact with us, to enrich your user experience, and to customize your relationship with our website.

Click on the different category headings to find out more. You can also change some of your preferences. Note that blocking some types of cookies may impact your experience on our websites and the services we are able to offer.

Essential Website Cookies

These cookies are strictly necessary to provide you with services available through our website and to use some of its features.

Because these cookies are strictly necessary to deliver the website, refuseing them will have impact how our site functions. You always can block or delete cookies by changing your browser settings and force blocking all cookies on this website. But this will always prompt you to accept/refuse cookies when revisiting our site.

We fully respect if you want to refuse cookies but to avoid asking you again and again kindly allow us to store a cookie for that. You are free to opt out any time or opt in for other cookies to get a better experience. If you refuse cookies we will remove all set cookies in our domain.

We provide you with a list of stored cookies on your computer in our domain so you can check what we stored. Due to security reasons we are not able to show or modify cookies from other domains. You can check these in your browser security settings.

Google Analytics Cookies

These cookies collect information that is used either in aggregate form to help us understand how our website is being used or how effective our marketing campaigns are, or to help us customize our website and application for you in order to enhance your experience.

If you do not want that we track your visit to our site you can disable tracking in your browser here:

Other external services

We also use different external services like Google Webfonts, Google Maps, and external Video providers. Since these providers may collect personal data like your IP address we allow you to block them here. Please be aware that this might heavily reduce the functionality and appearance of our site. Changes will take effect once you reload the page.

Google Webfont Settings:

Google Map Settings:

Google reCaptcha Settings:

Vimeo and Youtube video embeds:

Other cookies

The following cookies are also needed - You can choose if you want to allow them:

Privacy Policy

You can read about our cookies and privacy settings in detail on our Privacy Policy Page.

Privacy Policy
Accept settingsHide notification only