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 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 has been agreed. This includes the parties’ unequal bargaining power (Autoclenz v Belcher [2011] ICR 1157). 


The tribunal’s task is to work out what the parties must have intended to agree. It is not to rewrite their 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 will 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. Here is a good example:


Contract terms must be clear enough for courts 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 their payment obligations just because some of the detail is uncertain. In Allen v TRW Systems [2013] UKEAT/2013/0083/12, the EAT warned tribunals to be wary of employers who argue that important payments promised to employees as part of their remuneration package, such as in that case, enhanced redundancy payments, 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 the employee of breaking a contract term, the more stringent the employer’s duty to spell out clearly what is not allowed, and the consequences of breach. This principle is especially important if an employer wants to control employees’ behaviour outside work, for example, posting at home on social media (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, sometimes called “flexibility terms”. This kind of term must always be express, written, clear and unambiguous. It can never be implied. Allowing an employer the contractual right to make future changes to important terms in an employment contract without the employee’s agreement is an “unusual” right, said the Court of Appeal in Security and Facilities Division v Hayes [2001] IRLR 81. 


Flexibility terms must 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, a contract change that is imposed using a flexibility term should not go beyond existing contractual obligations, or fundamentally change them. It should not, for example, add significant extra duties to a job role, as opposed to varying existing duties:


In a useful recent example, the case of 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 but spread over five mornings, to suit changes to school timetabling. The EAT said that the language of the written contract did not allow the school to change Hart’s hours without her agreement. The case is a helpful one for reps faced with an employer wanting to rely on an express “flexibility” term to impose change.


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 the 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. 


The following case is perhaps the most well-known example of an employer being allowed by a tribunal to use a general flexibility term to impose significant contract change. In this case, supermarket retail chain Asda was able 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 — a core contract term:


Imposing a change in reliance on a flexibility term can lead to indirect discrimination where that change impacts negatively on groups protected by the Equality Act 2010 (see Chapter 7: Indirect discrimination). 


Recent changes to TUPE may have the effect of encouraging more employers to make greater use of flexibility clauses to impose change after a business transfer or service provision change (see Chapter 12: Express contract terms that permit change).


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: Discrimination). Employers should explore reasonable alternatives, such as working from home, before forcing through a mobility clause.


Employers owe a duty to make reasonable adjustments to any mobility clause for disabled employees. For a good recent example, see a case brought successfully 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.