Employment Law Case Updates - April 2015

"Right to vary" clauses are ineffective

The High Court has found that the Department for Transport was not entitled to make changes to terms in its staff handbook that had been incorporated into employees' contracts of employment. The Court found that an employer can only make unilateral changes in accordance with any variation provisions if such a change would not pose a detriment to employees.

Similarly, two recent Employment Appeal Tribunal (EAT) cases have also found in favour of employees on this point. In one case the employer could not rely on a general flexibility clause to unilaterally reduce paid sick leave and, in the other, the employer was not entitled to unilaterally vary working times where the relevant contractual clause was stated to be "subject to variation".

This spate of cases serves as a reminder to employers to take care when attempting to rely on variation clauses to make changes to terms of employment, particularly where such changes pose a detriment to employees.

Sparks and another v Department for Transport [2015] EWHC 181 (QB)

Norman and others v National Audit Office UKEAT/0276/14

Hart v St Mary's School (Colchester) Limited UKEAT/0305/14

Requirement to agree new terms of employment was indirectly age discriminatory

In this case, a requirement for employees to agree new terms and conditions was found to be a "provision, criterion or practice" (PCP) that was indirectly discriminatory towards older workers. These employees were found to suffer a greater disadvantage than younger employees as they stood to lose benefits, such as annual leave, which they currently enjoyed on the basis of their length of service. On the facts of this case, the PCP was objectively justified as there was no less discriminatory way for the employer to achieve its legitimate aim of reducing staff coststo ensure its future viability and to have in place market-competitive, non-discriminatory terms and conditions. Going forward, employers looking to make changes to terms and conditions should consider whether such changes may have a discriminatory effect, and if so, whether they can be objectively justified.

Braithwaite and others v HCL Insurance BPO Service Ltd UKEAT/0152/14 and UKEAT/0153/14

No constructive dismissal where employee delays resigning and accepts sick pay

The EAT has demonstrated, once again, how difficult it is for employees to succeed with a constructive dismissal claim. In this case, the employee was found to have...