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 minimum statutory right to 5.6 weeks’ holiday (see Chapter 4: Holidays). Any express terms, for example, regarding pay, hours or holidays, below statutory minimum levels, will be replaced with a right to the statutory minimum. 




When interpreting express contract terms, a tribunal normally starts by examining the signed contract documents. However, the surrounding context, especially the unequal bargaining power in the employment relationship, is very important when deciding what the parties must have intended to agree.


Sometimes a tribunal will conclude that the contract documentation is a sham that should be ignored because it does not reflect the true nature of the relationship between the parties. Tribunals are not bound by the labels chosen by the employer (Autoclenz v Belcher [2011] UKSC 41). Instead, they must look at all the surrounding circumstances. For a recent example, see Uber v Aslam [2017] UKEAT/0056/17/DA, in which the tribunal concluded that Uber’s carefully crafted contract documentation bore “no relationship to reality” (see also Chapter 2: Employment status). 




The tribunal’s task is to work out what the parties must have intended to agree. A tribunal is not allowed 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, but 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 the 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 irrelevant 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. In the context of the employment relationship, as long as the main elements of the work/wage bargain are clear, courts and tribunals are often 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 as part of the 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 argued 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 greater the obligation on the employer to spell out both the term and the penalty for breaking it. This is especially important where an employer wants to control employees’ behaviour outside work, for example, imposing rules on social media use outside working hours (see, for example, Smith v Trafford Housing Trust [2012] EWHC 3221).




Increasingly, contracts of employment include terms that purport to allow employers to impose unilateral changes to terms and conditions, sometimes called “flexibility terms”. This kind of term must always be in writing and its meaning must be very clear and unambiguous. It 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 this kind of term as “unusual”. However, 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 in the words used should be resolved against the interests of the employer (as the party who inserted the term into the contract for its benefit). In general, 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:


Every claim depends on its own facts, but in general, tribunals tend to be resistant to attempts by employers to rely on this kind of term to impose unilateral and detrimental changes to the employment contract, unless the changes are minor. For example, 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. 



In Norman v National Audit Office [2015] IRLR 635, 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 a flexibility term (Wandsworth London Borough Council v D’silva [1998] IRLR 193) and must not make it practically impossible for the employee to perform their side of the bargain (United Bank Limited v Akhtar [1989] IRLR 507).



An employer must not enforce a flexibility term in a way that destroys trustand 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 made more difficult by the inclusion of this kind of term in the employment contract (see Chapter 10, page 318). 



Imposing a change in this way can produce indirect discrimination where that change impacts negatively on groups 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 257).




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 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). 


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.