Express terms 



Express terms are the contract terms that are specifically agreed by the employer and employee, whether orally or in writing. An express term is generally 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 right to 5.6 weeks’ holiday (see Chapter 4: Holidays). Any express terms, for example, pay, hours or holidays, that are below statutory minimum levels will be replaced with a right to the statutory minimum. 



When interpreting express contract terms, a tribunal should normally start with any signed contract documents (Quantas Cabin Crew (UK) Ltd v Lopez [2012] UKEAT/0106/12/SM), but all relevant context should be considered in order to work out what was agreed. 



The tribunal’s task is to work out what the parties must have intended to agree. It is not to rewrite the agreement, substituting terms it regards as more reasonable, however unequal the parties’ bargaining relationship (Smith v Carillion (JM) Ltd [2015] EWCA Civ 209, Consistent Group Limited v Kalwak [2009] EWCA Civ 98). 



Where the meaning of an express term is clear, a tribunal must not imply a term that contradicts it. However, sometimes the negative impact of an express term can be reduced by the tribunal making it 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 requirement to relocate at the request of the employer was subject to an implied term that the employer must not act unreasonably when making that request, for example, by giving just a few days’ notice.



Express terms must be interpreted objectively, based on how matters appear to a reasonable informed outsider. Privately held beliefs and plans that either side kept to themselves when negotiating are generally not relevant when it comes to working out the terms of an agreement (Anderson v London Fire & Emergency Planning Authority [2013] EWCA Civ 321). This is an important principle that both sides often misunderstand.


Contract terms must be clear enough for courts to be able to work out what the parties must have intended. However, as long as the main elements of the work/wage bargain are clear, courts are often reluctant to allow employers to escape from 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.



Genuine ambiguity in contract terms can sometimes be resolved by looking for evidence of a clearly established practice. For example, in Dunlop Tyres v Blows [2001] IRLR 629, the language of the written contract document on overtime pay was ambiguous, and employees were able to argue successfully that they were entitled to triple time on bank holidays, not the double time suggested by the employer, because the practice of paying triple time had operated for more than 30 years. 



The more serious the consequences for an employee of breaking a contract term, the more onerous the obligation on the employer to spell out both the contract term and the penalty if the term is breached. This is especially important where an employer wants to control employees’ behaviour outside work, for example, by imposing rules on posting on social media outside working hours (Smith v Trafford Housing Trust [2012] EWHC 3221).



Increasingly, contracts of employment include terms that purport to allow employers to make unilateral changes to core terms and conditions, including pay arrangements and hours, without negotiation. These are sometimes called “flexibility terms”. They must always be in writing, and the meaning must be very clear. This kind of term can never be implied.


Despite the Court of Appeal describing these terms as "unusual" in the case of Security and Facilities Division v Hayes [2001] IRLR 81, in practice their use seems to be on the rise, especially in workplaces where unions are not recognised.


Terms of this kind should always be interpreted narrowly, and any ambiguity in the words used should be resolved against the interests of the employer, as the party who insisted on including the term in the contract. In general, any change should not exceed or fundamentally alter existing contractual obligations. It should not, for example, add significant extra duties to a job role, as opposed to varying existing duties:


In Hart v St Mary’s School (Colchester) Limited [2015] UKEAT/0205/14/DM, a school was not allowed to rely on an express flexibility term 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, to suit changes to school timetabling. The EAT said that the contract term did not allow the school to change Hart’s hours without her agreement. 



Employers must not act unreasonably when enforcing a flexibility term (Wandsworth London Borough Council v D’silva [1998] IRLR 193), or make it practically impossible for the employee to perform their side of the bargain (United Bank v Akhtar [1989] IRLR 507).


The employer must not try to enforce a flexibility term in a way that destroys trust and confidence, or breaches the duty of good faith (White v Reflecting Roadstuds [1991] IRLR 331). For example, there should always be proper consultation, which should be with the union where one is recognised, and enough notice should be given of planned changes to enable staff to prepare. 


Claims for constructive dismissal are particularly difficult in this context, since they rely on demonstrating that the employer has fundamentally breached the contract of employment.


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


Imposing a change in this way can lead to indirect discrimination where that change impacts negatively on groups protected by the Equality Act 2010 (see Chapter 7: Indirect discrimination). It can also lead to infringements of the Public Sector Equality Duty (see Chapter 7, page 280).



One specific type of flexibility 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 attention of the employee when the agreement is made, and 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 also owe a duty to make reasonable adjustments to any mobility clause for disabled employees. For a good recent example, see a successful case brought by professionals’ union Prospect, Watson v The Civil Aviation Authority, ET, unreported, 2014 (source: Prospect union website). 



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.