When drafting their employees' contracts of employment, companies have the opportunity to include a variety of express terms requiring employees to be flexible. A contract could, for example, require employees to work whatever shift pattern the company may decide, or to carry out duties that are reasonably related to their main job function even if not expressly included in their job description, or to change their place of work if the company decides to relocate. It is important that contracts are drafted clearly if they are to give the employer the flexibility it needs. Companies may therefore wish to contact their Association for advice on the wording of their employment contracts.
Express terms can give a company freedom to require employees to change when and where they work and what they do. That freedom is, however, limited to some degree by other legal principles, as explained below.
A contract term that is indirectly discriminatory on the grounds of sex is not legally enforceable. Therefore, if a term requiring flexibility has a disproportionate impact on one sex, the company cannot enforce it unless it can show that the term is necessary to meet the company's business needs. Take, for example, terms that require employees to relocate or change their working hours at short notice. More women than men are likely to find it impossible in practice to comply with such requirements, because women are more likely than men to be the second earners in their household and to have primary responsibility for childcare arrangements. A company that uses terms like these therefore needs to ensure that it has a real business need for employees to be mobile and flexible in their working hours. Likewise, requiring employees to be flexible in their hours and days of work can interfere with some employee's religious observance, and a company should therefore be in a position to objectively justify its need for such flexibility in order to avoid indirect religious discrimination. Indirect discrimination is explained in more detail elsewhere in this Guide ( indirect discrimination ).
A company is under a legal duty to take reasonable care for the health and safety of its employees. Even if it is has a contractual right to ask employees to be flexible, it cannot use that power in a way that puts employees' health and safety at risk. This may, for example, put some limits on the company's scope for using contractual terms that allow it to ask employees to work excessive overtime or to take on onerous extra duties.
In relation to working hours, employees are given specific protection by the Working Time Regulations 1998 (working time regulations). For example, a company cannot use a contractual power to ask an employee to work overtime or to require an employee to work more than 48 hours on average a week, unless the employee has agreed in writing to work those hours. It is important to remember that the Regulations give employees' additional, specific rights in relation to working hours, rest breaks and holidays; they in no way detract from companies' overriding obligation to protect their employees' health and safety. Therefore, even if an employee had agreed in writing to work over 48 hours a week, a company would be in breach of its duty of care if it asked the employee to work such long hours that his or her health was damaged.
Employers have an important implied obligation not to act in a way that breaches trust and confidence between themselves and their employees. This duty operates alongside any express terms in employees' contracts. For example, even if a company had a contractual right to ask an employee to move workplace, it might be breaching trust and confidence if it asked the employee to move without notice to a new workplace beyond reasonable travelling distance from his or her home.
In theory, an employment contract can include a clause giving the employer a general power to change all or any of the terms of the contract. In practice, however, courts and tribunals are reluctant to enforce a clause of this type unless the wording of the clause is very clear and there is absolutely no doubt that it covers the change the employer wants to make. Furthermore, a contract is not legally enforceable if its terms are uncertain. There is an argument that, if all the terms of an employment contract can be changed unilaterally by the employer, the contract is too uncertain to be enforceable.
Companies that are considering including general flexibility clauses in their employment contracts may wish to contact their Association for advice.