"undertake other duties as required” term in contracts of employment

“Flexibility clauses” such as the requirement to “undertake other duties as required” within contracts of employment is very common. 

In essence these terms appear to let the employer amend the contract without first obtaining the employee’s consent.  A recent ruling by the Employment Appeal Tribunal (EAT) has thrown a bright spotlight on the need for employers to ensure that “flexibility clauses” are drafted unambiguously and have contractual effect if they are to be effective

In Norman & Others v National Audit Office the National Audit Office (NAO), argued that it had the right to unilaterally vary staff terms, and could therefore reduce their entitlement to various forms of paid leave.  Staff challenged this and the EAT agreed with them.

The Staff's legal starting point was that, for a flexibility clause to be effective, it must “clearly and unambiguously" identify a right for the employer to vary the employment contract unilaterally.  For example, this might involve specific wording such as “The employer reserves the right at any time during your employment to…”

In this case however, the contracts stated that conditions of service were “subject to amendment”, and significant changes “will be notified” to employees.  The EAT held that this did not create a viable flexibility clause. Instead, it was found to be simply a general statement, which did not establish what the mechanism for amendment might be or the circumstances in which it might be invoked.

When the EAT drilled further down, they found a  provision in the employers' staff manual which said “Changes to  terms and conditions will not be implemented while negotiations are taking place, unless management considers this essential to the operation ..”  But this had not  not to have been incorporated into employees’ contracts.

The court therefore found in favour of the claimants and granted them a declaration that their entitlements in question had not been varied


Concrew Training’s one day good practice workshop on Employment Legislation, rights and responsibilities explores this and other topical developments as well as the latest changes to employment law. More Information HERE

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