If a term in a contract is discretionary or flexible, does this mean that the employer can change it?
Discretionary terms allow the employer a degree of discretion to change the term, or discretion as to how the term is exercised. For example, a term may give the employer the discretion to change the employee's place of work or discretion over whether or not to award a bonus. The extent of the employee's entitlement and the employer's discretionary power to change the term or exercise discretion depends on the precise wording of the discretionary clause. Employers need to be very careful with the drafting of discretionary terms as they will be strictly construed by a tribunal or court.
The employer must exercise its discretion in accordance with the mutual duty of trust and confidence. The employer should have a good reason for exercising the discretionary or flexible clause, consult the employee first, give the employee time to make any required change and provide all reasonable support.