Express terms 





Express terms are any contract terms that are specifically agreed by the employer and employee, whether orally or in writing. An express term is generally legally binding unless it tries to remove a statutory right. For example, an express term saying that a full-time worker is entitled to just two weeks’ holiday would be overridden by the Working Time Regulations 1998 which give a minimum statutory right to 5.6 weeks’ holiday (see Chapter 4: Holidays). Any express terms below statutory minimum levels (for example, on hourly pay or holidays) will be replaced with a right to the statutory minimum. 





When interpreting express contract terms, a tribunal usually starts by looking at signed contract documents. However, the surrounding context, especially the unequal bargaining power in the employment relationship, is very important when it comes to working out what the parties intended.



Sometimes a tribunal concludes that the contract documentation is a sham and should be ignored because it does not reflect the true agreement between the parties. Tribunals are not bound by the labels chosen by the employer and instead must look at all the surrounding circumstances to work out what was agreed (Autoclenz v Belcher [2011] UKSC 41). For a recent example, see Uber v Aslam [2018] EWCA Civ 2748, in which Uber’s carefully crafted contract documentation was found to bear “no relationship to reality” (see also Chapter 2: Challenging false self employment). 





The tribunal’s task is to work out what the parties must have intended to agree at the time they entered into their contract. A tribunal judge cannot rewrite the agreement substituting terms they regard as more reasonable, however unequal the parties’ bargaining relationship. This would be a mistake of law (Smith v Carillion (JM) Ltd [2015] EWCA Civ 209, Consistent Group Limited v Kalwak [2009] EWCA Civ 98). 





If the meaning of an express term is clear, a tribunal must not imply a term that directly contradicts it. However, an express term can be made subject to a separate implied term. For example, in United Bank Limited v Akhtar [1989] UKEAT/230/88/1210, the tribunal ruled that a clear express contract term requiring an employee to relocate at the request of the employer was subject to an implied term barring the employer from behaving unreasonably when making the request, for example, by giving just a few days’ notice, so that the express term became practically impossible to perform. 


A more recent example, Awan v ICTS UK Limited [2018] UKEAT/0087/18/RN, concerned an express contractual right to be paid valuable ill-health retirement benefits until retirement under an ill-health retirement plan. In this case, the EAT implied a contract term that prevented the employer exercising their contractual right to dismiss the claimant for ill-health once he had become entitled to receive payments under the plan. Any other conclusion would have enabled the employer to frustrate the contractual benefit as soon as the employee became eligible to receive it. This could not have been what the parties intended, said the EAT. The employer remained still free to dismiss for other reasons, such as misconduct. 





Express terms must be interpreted objectively, based on how matters appear to a reasonable informed outsider. Private beliefs or plans that the parties keep to themselves when negotiating are generally irrelevant (Anderson v London Fire & Emergency Planning Authority [2013] EWCA Civ 321). This is an important principle that both sides often misunderstand.




Express contract terms must be clear enough for courts to work out what the parties must have intended. However in general, provided the main elements of the “work/wage bargain” are clear, courts and tribunals tend to be reluctant to allow employers to escape important payment obligations just because some of the detail is uncertain. In Allen v TRW Systems [2013] UKEAT/2013/0083/12, a case in which the employer tried unsuccessfully to avoid making contractual redundancy payments, the EAT warned tribunals to be especially wary of employers who argue that important payments, promised to employees as part of their remuneration package, such as enhanced redundancy pay, are merely matters of policy and discretion. (See also redundancy pay, Chapter 11). 





The more serious the consequences for an employee of breaking a contract term, the greater the onus on the employer to spell out clearly both the term itself and the penalty for breaking it. This is especially important where employers want to control behaviour outside work, such as imposing rules on social media use outside working hours. (For a good example, see the case of Smith v Trafford Housing Trust [2012] EWHC 3221).





Increasingly, contracts of employment include express terms that purport to allow employers to impose unilateral changes to employees’ terms and conditions. This kind of term must always be in writing and the chosen wording must always be very clear. This kind of term can never be implied.
In the case of Security and Facilities Division v Hayes [2001] IRLR 81, the Court of Appeal described the use of such terms as “unusual”, but the practice seems to be spreading, especially in workplaces with no recognised union. Terms of this kind must always be interpreted restrictively, and any ambiguity must be resolved against the interests of the employer, as the party that chose to include the term into the contract for its benefit. In general, where an employer relies on this kind of term to impose a unilateral change to contract terms or working conditions, any change must not exceed or fundamentally alter the existing contractual obligations. It should not, for example, add significant extra duties to a job role as opposed to varying existing duties. For example:


In another example, the case of Hart v St Mary’s School (Colchester) Limited [2015] UKEAT/0305/14/DM, a school was not allowed to rely on an express term stating that “the fractional part will be notified separately and may be subject to variation depending on the requirements of the school timetable” to force a part-time teacher to change her hours from three full days a week on specific days to the same number of working hours spread over five mornings. The EAT said that the contract term did not allow the school to change Hart’s hours without her agreement. 




In Norman v National Audit Office [2015] UKEAT/0276/14/BA, the EAT ruled that the words “subject to amendment”, used in employees’ contracts, came “nowhere near” the standard of clarity that would allow the employer to impose change on unwilling employees. They established nothing more than the potential for amendment by agreement. 



Employers must act reasonably when enforcing this kind of term (Wandsworth London Borough Council v D’Silva [1998] IRLR 193) and they must not make it practically impossible for the employee to perform their side of the bargain (United Bank Limited v Akhtar [1989] IRLR 507).




Change must not be imposed in a way that destroys trust and confidence, or breaches the duty of good faith (White v Reflecting Roadstuds [1991] IRLR 331). There should always be proper consultation, which should be with the union where one is recognised. Enough notice should be given of planned changes to enable staff to prepare. 




The following case is a notorious example of an employer successfully using a contract term to impose significant unilateral contract change. Supermarket chain Asda was allowed to rely on a term in its staff handbook that permitted unilateral change to employment terms “to reflect the changing needs of the business”, to impose significant changes to pay structures:


There can be indirect discrimination where any change to contract terms or working conditions impacts disproportionately on a group protected by the Equality Act 2010 (see Chapter 7: Indirect discrimination). The Public Sector Equality Duty is also potentially relevant here (see Chapter 7, page 269).





One specific category of contract term is the mobility or relocation clause. This is a contract term that allows an employer to impose temporary or permanent changes to work location. A mobility clause cannot be implied. It must always be express, written and clear. It should be drawn to the employee’s attention when the agreement is made, not hidden away, for example, in a staff handbook. It must not be enforced arbitrarily or so as to discriminate (see Chapter 7).
Employers should explore reasonable alternatives, such as working from home, before imposing a mobility clause.





Employers owe a duty to make reasonable adjustments to any mobility clause for disabled employees. For a good example, see the successful claim supported by professionals’ union Prospect, Watson v The Civil Aviation Authority, ET, unreported, 2014 (source: Prospect union website).


Mobility clauses can be sex discriminatory. In Meade-Hill v British Council [1995] IRLR 478, a mobility clause that required an employee to work anywhere in the UK was ruled by the Court of Appeal (CA) to be indirectly discriminatory. The CA said that the fact that a higher proportion of women than men were secondary earners and would therefore be unable to comply did not need to be proved by statistical evidence. 



In general, reps should be very cautious when faced with mobility clauses. Employers have used these clauses successfully to avoid making redundancy payments (see Chapter 11: Relocation redundancy). 



There is no entitlement to extra pay to relocate unless the contract says so. However, in United Bank v Akhtar [1989] IRLR 507, a requirement to relocate from Leeds to Birmingham the following week with no relocation expenses was held to be a breach of contract because the employee was unable to comply.