One rule for us and another for schools

Once HR has made time to draft them, most teachers will be provided with contracts of employment. They should clearly outline employees’ duties together with their respective contractual and statutory rights in accordance with the Employment Rights Act 1996. Beyond this, employment issues in schools can often be dealt with in a manner not entirely consistent with established practice.

Teachers (together with university and college lecturers and most education support staff) are widely accepted to be niche employees due to their somewhat irregular contractual terms. Teachers are frequently asked to carry out work far beyond their contractual remit (and remuneration) ranging from covering lessons, planning all night or weekend and helping with extra-curricular events to changing their working hours entirely. The reaction of most people with little experience of the education sector is usually, ‘…but they get great holidays…

Unilateral variation clauses

A vital principle of contract and employment law is that changes to employees’ contractual terms and conditions should be mutually agreed. In Wandsworth LBC v D’Silva [1998] IRLR 193 it was held that any contractual right of an employer to attempt to make a unilateral variation of an employment contract must be stated in clear and unambiguous terms. Notwithstanding this, at the time Lord Woolf referred to such a power as ‘unusual’. Since then employers have frequently tried and failed to impose significant unilateral variations on their employees. It is now generally accepted in the sphere of employment law that such clauses are of little practical use.

Are they still being used as a sword in schools?

The case of Hart v St Mary’s School (Colchester) Ltd UKEAT/0305/14 has shown that schools, in a world of their own, are still inclined to test the limits of the express contractual variation clause. Mrs Hart had worked at St Mary’s School Colchester, as a Learning Support Teacher on a part-time basis, for over 10 years. During this period her general working hours altered over time (with her consent) ultimately resting at three days per week (by custom and practice). Following an overhaul of the School’s timetable the School asked Mrs Hart to spread her working hours over 5 days. Whilst subsequent consultation did take place, Mrs Hart made clear that she could not work on Fridays due to important family commitments. Despite this, the School implemented the new timetable and Mrs Hart was forced to resign (reserving her right to claim constructive unfair dismissal).

Although unsuccessful at first instance (due to the Tribunal finding in favour of the School’s variation clause and holding that her hours had not been determined by custom and practice) HHJ Hand sitting alone ruled on appeal that the School had repudiated Mrs Hart’s contract and that the variation clause could not be relied upon to unilaterally vary the contract permanently.

All employers should exercise caution when exercising contractual rights to vary terms and conditions. This includes schools.

David-Ward-h&s

David Ward
Solicitor
Employment Team
DWard@LawBlacks.com
0113 227 9262

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