01 Nov 2021
If you have started a new role in your organisation, a new job at a different organisation or you have been told that there are some changes being made to your working arrangements, pay or benefits, you’ll want to know what the contractual arrangements are. It is therefore important to understand where to look and what to look out for.
The Contract
A contract is an agreement between 2 or more people or organisations that satisfies a number of legal requirements. A contract of employment is a contract just like any other – but the particular nature of the relationship between employee and employer means that some considerations apply only or particularly to employment contracts.
An employment contract does not have to be in writing. If you work for your employer and you are paid for the work you do, you (probably) have a contract of employment. But it might be difficult to know what all the terms of that contract are.
The Employment Rights Act 1996 requires an employer to provide basic information about the employment (e.g. pay, place of work, hours of work, duties, holiday entitlement) in a written statement of terms and conditions. This information must now be provided as a day 1 right.
You should also have a job description outlining your role and duties and clarifying the tasks you undertake.
Types of Contractual Terms
Express Terms
It is important to know what terms govern the relationship between employer and employee.
Most terms and conditions are called express terms. They are the terms that the employer and employee have agreed. They will often be set out in the written contract of employment issued when employment commenced.
However, in education, there are often other terms incorporated into the contract of employment that can be found elsewhere.
For example, all teachers in state-funded schools have their terms and conditions governed by the school teachers’ pay and conditions document (STPCD), which applies nationally and has statutory effect.
In addition to the STPCD, collective agreements apply to Local Authority-maintained schools, known as the Burgundy Book. This contains provisions for enhanced payments and entitlements, among other things, and applies in community, voluntary controlled, voluntary aided and trust schools.
Academies, free schools and independent schools are not legally required to employ on these terms, so employees of those organisations may find themselves governed by a distinct set of terms and conditions. The contract of employment might “align” with, for example, Local Authority pay grades, but there may not be an express entitlement to those grades.
As with schools in the independent sector, sixth form colleges are not legally required to employ on STPCD and Burgundy Book terms and conditions, although some do.
Most teachers in the sixth form college sector are subject to the Teaching staff: conditions of service handbook, commonly known as the Red Book, which has similar terms to those in the Burgundy Book.
So, it is possible that there could be a range of other terms and conditions that are applicable to your role when working in education. But you must check the contract of employment to be sure.
Not every term in such a document will be incorporated into the contract of employment. The law asks the question, is a given term “apt” for incorporation? The question can be difficult to answer. You will usually need expert advice.
Implied Terms
If the written terms of the contract of employment are clear, it is often very difficult to show that other terms in fact apply. But not all terms are express terms.
Some terms can be assumed to have been agreed. These are called implied terms.
A term may be implied where it is obvious that the employer and the employee meant to agree it and/or where the practice has gone on for many years. Sometimes it is possible to say that a term has arisen through ‘custom and practice’ – but just because a certain thing has been done in a certain way for a certain time, it does not necessarily follow that that is a term of the contract.
Express terms tend to override other sorts of term.
Changing the Contract of Employment
As a general rule, each party to a contract can expect the other party not to try to change the contract without agreement.
So, if the employer asks you to work extra days, e.g. inset days or extra days after term, with no extra pay, contrary to previous arrangements, this might constitute a change to the contract, which could be objected to.
If the employer tries to take away job duties or responsibilities, this might also amount to a change to the contract of employment, which would need to be authorised by the contract or agreed.
Of course, employers and employees are free to negotiate new terms and conditions if they can agree about them. The contract of employment might also provide the flexibility for certain changes to be made. However, it depends how drastic the changes are.
If a change is proposed, it is not agreed and the contract doesn’t allow for the change to be made, what can you do?
If you accept the changes (e.g. as part and parcel of a pay rise) by continuing to work on the new terms, it will be difficult to ‘cherry pick’ the good from the bad. Your continued performance of the contract will usually indicate that you have agreed to all of the new terms – including the ones that are less beneficial.
Sometimes an employer will make changes that are not at all beneficial. If you continue to work under the new terms and conditions, your employer may be able to argue that, through inaction, you have “acquiesced” to the changes. You should get advice from your Association before you continue to work under terms and conditions that you have not agreed to accept.
Sometimes employees will agree to work under new terms and conditions for a period e.g. whilst negotiations about the changes are resolved. It is often said that they are working “under protest”.
It is dangerous simply to continue to work whilst saying “I am working under protest”. You run the risk that the employer will still be able to argue acquiescence. “Working under protest” in itself is not usually a solution to the problem. It can be a useful position to take whilst negotiations continue – but it is not a guarantee that your old terms and conditions will be preserved.
If your employer changes your terms and conditions in a fundamental way, without your agreement, it might be possible to make a claim for breach of contract or potentially unfair dismissal. Such cases are called ‘constructive dismissal’ cases and are often very difficult to prove. You should always seek advice before thinking about going down this route.
Employment Tribunals
If your employer does not provide you with a written contract of employment you can apply to the Tribunals for an order setting out the terms under which you are employed.
You may also be able to make a claim in the Tribunals in respect of other contractual entitlements. For example, if you are not paid your full contractual wages, you may be able to make a Tribunal claim for “unlawful deductions from wages”. Sometimes claims have to be (or are better) brought in the County Court. It is therefore important to seek specialist advice via your Association.
Summary
If you have a query about your contract of employment or a change to your contract, seek advice from NAEO as quickly as possible. Doing nothing about it might lead to you inadvertently accepting the changes and they might then be irreversible.