In Hart v St Mary's School (Colchester) Ltd, Mrs Hart was a part-time teacher and was asked to spread her working hours over five days instead of three because of changes to the school timetable. Consultation took place, but no agreement was reached.  The school then insisted that the change take place on a specified date, relying upon two contractual clauses: (i) Clause 1.4 – In the case of the Teacher on a part-time contract the fractional part will be notified separately and may be subject to variation depending upon the requirements of the School Timetable; and (ii) Clause 2.1 – During School term time, except as may otherwise be provided for under clause 1.4 above, the Teacher shall work all School hours while the School is in session and at any other time (including during School holidays, at weekends and before and after the School’s normal starting and finishing times) as may be necessary in the reasonable opinion of the Principal for the proper performance of his/her duties.

Hart resigned and claimed constructive dismissal arguing that the school was not entitled to rely on the contractual clauses to change the amount of days she worked. A tribunal rejected Hart’s claim on the basis that the school had the contractual right to vary her contract and so there had been no breach. The EAT disagreed and found that the tribunal had erred in law by construing the contract of employment as conferring a unilateral power of variation on the employer. The effect of the reference to Clause 1.4 in Clause 2.1 was to take part-time teachers out of the mandatory provisions relating to working all school hours while the school was in session. As for Clause 1.4 the variation clause was not sufficiently clear to allow for a power to vary unilaterally.

This case shows how careful employers must be in drafting contractual clauses which purportedly give the right to unilaterally change the terms and conditions of employment. The decision provides confirmation that just stating that terms are “subject to variation” will not normally be sufficient. In Wandsworth LBC v D'Silva [1998] IRLR 193, the Court of Appeal commented that unilateral variation is an unusual power and an element of reasonableness is attached. The need to spell out the nature and scope of any changes that may be reasonably required is therefore an important principle in drafting ‘right to vary’ clauses.  

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