Bateman & Ors v Asda Stores Ltd

An employment contract may reserve an employer a unilateral power to vary contractual terms, including pay and working arrangements, but the language must clearly confer that unusual power. A clause permitting the employer to review, revise, amend or replace the contents of a contractual staff handbook may extend to contractual provisions expressly included in the handbook. The power is construed objectively and by reference to the document and its relevant background. Where the wording is clear, there is no need to invoke contra proferentem. A trust-and-confidence argument which was expressly disclaimed and unsupported by evidence below cannot be raised for the first time on appeal.

Employees brought claims concerning Asda’s introduction of a new pay and work regime without obtaining their further consent. The Employment Tribunal held that the Colleague Handbook formed part of their contracts and that its variation clause permitted Asda to make the changes. The employees appealed on construction, relevant background, trust and confidence, and contra proferentem grounds.

The central issue was whether the Handbook’s reservation of a right to review, revise, amend or replace its contents authorised unilateral changes to contractual matters, including pay and hours of work.

1. Appeal dismissed. The Employment Tribunal had correctly held that the Colleague Handbook authorised Asda to introduce the new regime without obtaining the employees’ further consent.
2. The general rule is that employment contracts may be varied only by agreement. An employer may, however, reserve a contractual power to vary a particular aspect of the contract unilaterally. Clear language is required because the power is unusual. This approach, stated in Wandsworth London Borough Council v D'Silva [1998] IRLR 193, was applied.
3. Paragraph C of the Handbook conferred two separate rights: to review, revise, amend or replace the contents of the Handbook, and to introduce new policies. The first right was not limited to non-contractual policies. Since the Handbook expressly identified pay, sick pay and hours of work as contractual matters, the power extended to those matters.
4. The power applied to amendment of the Handbook’s contents and did not require re-issue of the entire Handbook. Removing the old regime and introducing the new regime constituted an amendment within the clause.
5. The Handbook was to be construed objectively. The employees’ asserted personal expectations could not establish a different meaning because no supporting evidence had been adduced below. The trust-and-confidence argument was not open on appeal because it had been expressly disclaimed before the Employment Tribunal and was unsupported by evidence.
6. The wording was clear and unambiguous, so the contra proferentem rule did not arise. The cross-appeal therefore did not arise and was also dismissed.

1. Employment Appeal Tribunal: dismissed the employees’ appeal from the Employment Tribunal’s decision that the Colleague Handbook permitted Asda to impose the new pay and work regime without further consent.
2. Employment Tribunal: decided issue 1 in Asda’s favour and did not determine the remaining consent and unauthorised-deduction issues.