(2) Express variation clauses

(2)     Express variation clauses

What is the legal status of a clause in the contract which purports to give the employer a power to vary some, or all, of the terms unilaterally? On the one hand, such a clause contradicts the usual requirement that a variation needs consent by the employee, but on the other hand, the clause itself constitutes an express term which the employee has accepted. The case law here is not extensive. It tends to suggest that if the variation clause (or, in an alternative formulation, a clause declaring that the matter in question is non-contractual and so remains within managerial prerogative) is fairly precise and restricted (eg to one particular matter) and is not perceived by the court or tribunal to be oppressive, then it may well be valid and enforceable. Thus, in Cadoux v Central Regional Council [1986] IRLR 131, Ct of Sess the court upheld a clause stating that the rules of a non-contributory life assurance scheme were originally made unilaterally (to the extent that the scheme could be discontinued completely by the employer without union agreement); the only undertaking that the employer was construed as having given was to consult the workforce first. This 'consultation' point (falling short of requiring contractual consent) was also seen in