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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 47381
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I have been working for a company for 13 years, my contract

Resolved Question:

I have been working for a company for 13 years, my contract states I work from the London office, the last 5 years, I have worked full time flexible hours from home (agreed with my bosses informally) (with occasional trips to the london office) , now my boss has told me I (and 14 others) have to go to the office 3 days a week for social reasons be part of the wider team i.e. socialise with others - no business reasons stated. Is this breach of contract/ indirect /direct discrimination.?


regards Jane

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. Why did you start working from home?

Customer:

Hi Ben,

Customer:

I had my children in 2006, 2008 and went back to work 3 days working flexi hours mostly from home, then 4 days in 2010 and 5 days in 2012, always mostly from home with occasional visits to the london office.

Ben Jones :

So was the agreement made following a formal flexible working request?

Customer:

No, it was all informal agreements, I do not have anything in writing

Ben Jones :

ok let me get my response ready please

Customer:

ok great thanks

Ben Jones :

This is certainly not direct discrimination and also unlikely to be indirect discrimination because there are plenty of parents/mothers working full time in an office so to say that you the practice of working in the office is detrimental because of your gender is going to be difficult.


 


Instead you need to try and argue this as a change to your contractual terms and conditions. Even though the changes 5 years ago were not documented anywhere and this was an informal agreement, it is possible for it to have become an implied contractual term.


 


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 also wish to consider making a formal flexible working request to keep your current arrangement or to try and agree on something that would still be suitable for you. You have the right to make such a formal request and the employer needs to follow a set procedure to deal with it.


 

Ben Jones :

Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this? Thanks

Customer:

Hi Ben, Thanks for your reply, in terms of your questions, I would say on 3 occasions over the last 5 years, I have made informal agreements with my bosses regarding the hours/ location that I complete the my job. Essentially the same arrangements had been made each time i.e.mainly working from home, flexing my hours around picking children up from school and working evening hours.

Customer:

These terms were not publicised to other employees.

Customer:

Thanks for your advice on the flexible working option, Regards Jane

Ben Jones :

The issue with publicising these to others would mainly apply if this was a term that the workforce in general was going to try and rely on, but if this was just an individual arrangement then it would not be as important

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