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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
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Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I have worked for acompany for 6 yrs on a zero hour contract,12

Resolved Question:

I have worked for acompany for 6 yrs on a zero hour contract,12 months ago I was told I was being given a 40 hr full time contract to date this has not occured.
Last week I called in sick for the day and as a result I have been told not to come in each day yet other colleagues have been called in.I feel as if I am being victomised and my colleagues agree.Is there anything I can do?
Submitted: 3 years ago.
Category: Employment Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today.

Ben Jones :

What was the reason for the sickness?

Customer:

Had a bout of sciatica

Ben Jones :

Have your shifts always been inconsistent, as and when basically?

Customer:

No have worked constantly apart from holidays averaging 50 hrs per week{monday to friday 6am till 3pm +occasional weekends

Ben Jones :

How long has that been applied for, since you started?

Customer:

Yes since I joined ^ years ago

Ben Jones :

have there been occasions where the employer has applied the zero hours agreement and decided not to give you any work in the week?

Customer:

Maybe once or twice in a year but its only been the odd day

Ben Jones :

ok let me get my response ready please

Ben Jones :

Your rights will very much depend on whether you are still officially employed on a zero hours contract, or if you can claim that this has been replaced by an ‘implied’ contract to reflect the hours you would normally do on a weekly basis.


 


If you were on a zero hours contract then you simply do not have any guaranteed hours and even if you were off for one day due to no fault of your own, the employer could directly or indirectly use that to change the hours they give you. In this case you will only really have protection if the reason for your absence was disability-related.


 


However, you may try and claim that the usual hours you do have become implied into your contract and take precedence over the zero hours agreement.


 


There is a principle in employment law where terms may become implied into an employment contract by ‘custom and practice’. This makes them contractually binding even if they are not written down anywhere. This area of law is rather complex and it is usually only down to the courts to establish with certainty if something had become an implied term. Nevertheless, it does not prevent employees from directly raising this argument with their employers.


 


The basic requirement for implying terms is the presumed intention of the parties, in other words - did the employer and employee intend for the terms in question to be treated as contractual. In general, a practice would need to have been clearly communicated and consistently applied for a substantial period of time before it can be considered an implied contractual term. Therefore, something that is uncertain, not communicated properly, not been applied consistently or has just been around for a few months is unlikely to qualify.


 


Case law has suggested that the following are important factors when considering whether a term has become implied in a contract:



  • On how many occasions, and over how long a period, the terms in question have been applied - the more times they have been applied and the longer the period over which this has occurred, the stronger the argument they had become implied into the contract

  • Whether the terms are always the same - large differences will make the argument they had become implied weaker

  • The extent to which the terms are publicised generally - there must be widespread knowledge and understanding amongst the workforce that such terms were being applied


 


You may tell the employer that you believe the term or practice you are relying on has been implied into the contract through 'custom and practice' and as such preventing you from doing these hours would be a case of breach of contract. They could of course deny that and refuse to discuss the matter and if that is the case then you can only realistically challenge this by raising a grievance first and then taking your case to an employment tribunal.


 

Customer:

Thank you for the advice and I will Take the matter up with my employers

Ben Jones :

You are most welcome. Please take a second to leave a positive rating for the advice I have provided as that is an important part of our process. Thank you and feel free to bookmark my profile for future help:



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