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Do flexibility clauses give employers powers to vary anything in a contract?

It's not uncommon for employers to look for some 'wriggle room' in contracts by including a 'flexibility clause' when issuing a contract of employment.

This is an express term in a contract which can enable employees to make changes to an employee's terms and conditions.

Flexibility clauses could deal with specific issues, such as working hours, or be used more generally to change a contract in ways an employer may not have predicted.

Consent already given

An employer may not vary the terms of a contract without the consent of an employee - but if a contract already has a flexibility clause in it, then it could be said that the employee has already given consent for changes.

However, employers have to be reasonable in the changes they make using flexibility clauses, and case law suggests that tribunals and courts commonly place a narrow interpretation on what such clauses allow. Either way, legal advice in such matters is always a good idea.

Still necessary to consult

Employers should also consult the employee on the intended change - a failure to do so could be considered a breach of trust and confidence implied in the contractual relationship between the two, and may lead to claims of breach of contract or constructive dismissal.

Employees may have concerns about a change, and employers should take these on board and seek to resolve problems or find routes to a compromise before implementing a change, even if it is provided for by the contract.

Involving employees makes good business sense, as it drives up levels of employee engagement and motivation - and finding a compromise in a difficult situation is the best way of preserving good employment relations at work.

Acas publications and services

Acas has published the pdf icon Advice leaflet - Varying a contract of employment [195kb] with information on how the process of changing terms and conditions should be undertaken.

Acas can help you with Contracts of employment, including with its step-by-step guide on how to establish a New employee's contract, and Useful templates for letters, forms and checklists.

Acas experts can also visit your organisation and develop terms and conditions of employment and help you minimise the potential for disputes. See Contracts and hours: how Acas can help for more information.

Related practical training is also available on Contracts and terms and conditions, Managing change, Handling difficult conversations, and for new employers, Employing People - A Practical Introduction.

For free, impartial advice and guidance visit Acas Helpline Online.

Visit the Acas Training Courses, Workshops and Projects area for more information.

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