What’s in a name? ‘Striker’, or simply ‘player’?
Last week England Football Club played out a turgid one-nil win over Slovakia in their maiden game for the World Cup 2018 qualifiers.
When questioned about England Captain Wayne Rooney’s role within the team, the England Football Manager Sam Allardyce said “it is not for me to say” where Wayne Rooney plays, “Wayne played wherever he wanted to”.
These are quite extraordinary words to hear from Sam Allardyce, given that he is the England Football Team (and Wayne Rooney’s) manager!
Wayne Rooney’s England Career – Still a Striker?
Wayne Rooney, winning his 116th cap, played largely in a deep midfield role is now his country’s most capped male outfield player, ahead of David Beckham, and is just nine games away from equalling goalkeeper Peter Shilton’s record of 125 caps.
But his role has been a hot topic for both club and country, with the 30-year-old forward featuring in a number of positions for Manchester United and England.
At the outset with such matters as the job title, in order to give the employer maximum flexibility, it is recommended that you consider making the job title and any job description as general as possible. For example, consider the difference between Wayne Rooney, England Footballer and Wayne Rooney, England Striker …
The importance of Contracts of Employment
“How is this applicable to an Employment Law blog post?” I hear you ask.
An employee’s role and terms of employment are bound to change in a number of ways during the course of their employment. Most changes will be uncontroversial, but sometimes employers want to do something that the employee is less willing to accept. In such cases, the employer must know how to make the change legally binding while minimising any possible disruption.
If an employer is seeking to make a change to the clause within the contract of employment, then the first port of call is to check to see if the terms of the contract authorise the change. This could arise in three ways:
1. It may be possible to interpret the term in question sufficiently broadly to accommodate the change that the employer is seeking to make.
2. There may be an express right for the employer to make changes in the area of the employment relationship covered by the proposed change (a specific flexibility clause).
3. The contract of employment may give the employer a general power to vary the terms of the contract of employment (a general flexibility clause).
Interpreting contractual terms
Broadly speaking, any ambiguity in the relevant term will be resolved against the party seeking to rely on it. This will be the employer, where they are seeking to rely on the scope of a clause to implement a change to the employment relationship. This serves as a useful reminder to employers to avoid any ambiguity when drafting their employment contracts.
In the context of the employment relationship, the issue of interpretation of contractual terms has arisen most often in relation to job titles and job descriptions. Courts and tribunals generally pay high regard to express job titles contained within the contract of employment.
In the case of Haden Ltd – v – Cowen [1982] the Court held that the employer could not rely on the employee’s express job title of “divisional contracts surveyor” to require the employee to work as a quantity surveyor, despite a clause requiring the employee to “undertake, at the direction of the company, any and all duties which reasonably fall within the scope of his capabilities“.
However, a wide interpretation may be given to a job title and/or job description in order to encompass an additional duty or working method. Therefore if Mr Rooney is employed as specifically as a striker, is this a different role to employing him specifically as a defender?
A ‘specific flexibility’ clause
Specific flexibility clauses commonly exist in relation to where the employee works (mobility clauses), what they do, and hours of work. Employers use such clauses to reserve the right to make changes in the relevant area without reference to the employee.
However, the law has developed in two ways to restrict the ability of employers to unilaterally make changes to the employment relationship in reliance on such clauses:
1) Flexibility clauses will be given a restrictive interpretation by courts and tribunals.
2) The implied terms of an employment contract may curtail the operation of an express flexibility clause.
As above, any ambiguity in the interpretation and scope of a flexibility clause will be decided in favour of the employee.
Furthermore, it is established law that widely-drafted clauses of a non-specific nature cannot be relied on to make the desired change. The more detrimental the change to the interests of the employee, the harder the clause will be to rely on.
A general flexibility clause
Employment contracts may try to give the employer a general right to make changes to any term of the contract. As such clauses purport to give the employer carte blanche to change any term of the employment relationship, so as to evade the general rule that changes must be mutually agreed.
Courts will rarely enforce such clauses. It is, therefore, unlikely that an employer will be able to rely on such general clauses to an employee’s detriment and therefore in practice, employers are unlikely to be able to rely on general flexibility clauses to make anything other than reasonable or minor administrative changes which are not detrimental to the employee.
So where does this mean for Rooney and England?
Therefore a contract can only be amended in accordance with its terms or with the agreement of the parties.If the employer’s proposals involve altering the existing contract and there is no contractual right to make such a change, the employer could:
1) Get express agreement to the new terms (either from the employee or through a binding collective agreement),
2) Unilaterally impose the change and use the employee’s conduct to establish implied agreement to the new terms, or
3) Terminate the existing contract and offer continued employment on the new terms.
Obviously, we advise that an attempt should be made to obtain an express agreement, as this is least likely to cause disputes between the parties.