In Hart v St Mary's School (Colchester) Ltd UKEAT/0305/14 the EAT held that a part-time teacher suffered a repudiatory breach of contract when the school she worked for imposed a change to her working hours that required her to spread her hours over five days rather than three.
Mrs Hart worked as a part-time learning support teacher at St Mary's School (the School) from July 2001 until she resigned in September 2013. Whilst the initial appointment letter stated that it was envisaged that Mrs Hart would work two days per week, in reality she worked three days per week. A contract of employment was to be entered into as soon as possible following the appointment but was not put in place until March 2003.
In 2013 the School decided that certain core subjects should be taught in the mornings, which necessitated a change in timetabling that affected Mrs Hart's working hours. Mrs Hart was invited by the School to spread her hours over five days as opposed to three and a period of consultation commenced, during which agreement on the variation could not be reached.
In part the failure to agree was due to Mrs Hart's caring duties to her husband, elderly mother and grandchildren meaning that she could not work on Fridays. When agreement could not be reached the School informed Mrs Hart of its intention to impose the change and that the change in working hours would take effect from 1 September 2013.
Mrs Hart resigned on 3 September 2013 but continued working until 31 December 2013, having indicated that she reserved her right to bring a claim against the School on the grounds that it had relied on the wrong provision in her contract, which meant that the School had no power to unilaterally vary her contractual terms. Mrs Hart brought a claim of constructive unfair dismissal.
Employment tribunal decision
The employment tribunal held that the School had been entitled to unilaterally vary the terms of Mrs Hart's contract and that, in seeking to do so, the School had consulted with Mrs Hart in good time, provided her with the business document explaining the changes and allowed her time to put forward proposals. Further, the employment tribunal found that there was no custom and practice that Mrs Hart would only ever work three days per week and Mrs Hart had erred in her interpretation of the contract.
Reliance was placed on the fact that the contract stated that Mrs Hart's hours may be subject to variation depending on the requirements of the School timetable and concluded that there had been no breach of a fundamental term of Mrs Hart's contract of employment that entitled her to resign in response to such breach. In any event the tribunal concluded that Mrs Hart had not resigned in response to any repudiatory breach but for other reasons, including her health and caring responsibilities.
Mrs Hart appealed to the EAT arguing that:
- The employment tribunal had misconstrued her contract of employment.
- The employment tribunal's conclusion that Mrs Hart had not resigned on account of any breach of contract on the part of the School was caused by misdirection leading to the question: to what extent does the fundamental breach have to be the reason for resignation?
The EAT found that the employment tribunal had misconstrued the contract of employment as conferring on the employer a unilateral power of variation when, in the EAT's view, the variation clause the School sought to rely on was neither sufficiently clear nor unambiguous to allow the unilateral variation. It also held that the purported unilateral variation by the School was a repudiatory breach of contract. The EAT also overturned the tribunal's alternative finding that the teacher did not resign in response to any repudiatory breach and remitted that issue back to a different employment tribunal to decide.
This case, together with Norman and others v National Audit Office UKEAT/0276/14 (Norman), in which the EAT was required to consider whether a general flexibility clause could be relied on to vary the employee's contractual entitlements, is a useful reminder to employers that general right to vary clauses are difficult to rely on and will be closely scrutinised if relied on and later challenged by staff.
In Norman, the EAT found that variation clauses that an employer sought to rely on needed to meet the standard of being clear and unambiguous and establish nothing more than the potential for amendment. Simply stating that terms and conditions were "subject to amendment" was unlikely to suffice.
In practice employers are unlikely to rely solely on a general flexibility clause in order to make anything other than minor or administrative changes to their employees' terms and conditions of employment, preferring the more formal route of dismissal and re-engagement on new terms and conditions in circumstances where agreement cannot be reached.