Are your Contractual Terms your Master or Servant?

The need to change the working hours of an individual often leads to disputes amongst both teaching and support staff e.g. changing the days of attendance or spreading the hours over more days. This is usually because the school has failed to become familiar with the terms and/or failed to ensure that its terms of employment provide expressly for this in a clear way. This was re-emphasized recently in a court case [1] and the notes below are a useful reminder of key points which schools need to consider in their circumstances. .

Unsuccessful Aims

The school wished to change the days on which an individual attended work so that the working hours were spread across 5 days rather than the current 3 days to ensure that particular core subjects could always be taught in the morning. Consultation took place but agreement was not reached. The school went ahead and relied upon a clause concerning the variation of hours.

The Court held that was ineffective for this purpose for several reasons including the lack of clarity in the contractual terms.

The school in this case was an independent school but there is a salutary warning for academies and maintained schools in the view of the author as explained below.

Familiarise Yourself with Your Terms

In presenting its case, the school did not appear to:

  • understand whether and how their terms addressed varying the hours or days of attendance of part-time staff;
  • what the related terms actually meant.

A lack of familiarity was a major contributor to the adverse decision of the judge.

This is a basic error which can be very expensive. I recall observing a case regarding a NHS employee in which the question of the suitability of alternative employment arose. At no time did the employer’s representative explain that the national agreement on redundancy defined as suitable a role up to 6 miles away. The case was lost on the distance/time to travel issue simply because the presenter was not familiar with the terms.

Clarify Your Terms

Both academies and independent schools have the power to write bespoke terms into employment contracts and thus ensure that hours can be varied including those of part-time staff. Have you recently read your terms and asked yourself, “do they reflect the needs of the school?”

Even though an academy or independent school may follow the School Teachers’ Pay and Conditions Document (STPCD), they can still amend those terms to address issues such as the variation of hours and/or days of attendance on a temporary or permanent basis.

Although maintained schools have to apply the STPCD, it is important to understand what restrictions are placed on the Head and the areas of freedom when discussing working hours [2]

Would you like a review of whether your terms about the varying of hours and/or attendance days could be improved? If so, write to the author via this link.

Breach of Terms an Effective Reason for Resignation

The determination of the school to press ahead with changes to the hours led to the employee resigning and claiming a breach of contract and thus constructive dismissal.

The school argued that there were several reasons for the resignation which were not connected with the change of hours proposed. However, the Judge decided, in line with previous Court decisions, that where there is more than one reason why an employee leaves a job the correct approach is to examine whether any of them is a response to the breach, not to see which amongst them is the effective cause.

Review the Effectiveness of your Terms

To avoid prolonged arguments and expensive tribunal claims, reconsider whether your terms of employment on working hours and days are clear and address the likely needs of the school.

Contact the author as noted above if you would like those aspects of your terms reviewed. As noted above you may be lucky and be offered a free review.


[1] Hart v St Mary’s School (Colchester) Ltd UKEAT/0305/14/DM

[2] You may also find the following article useful – Teachers’ Working Hours – Governors’ and Head’s Duties

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