Employment Lawyers Can Answer Your Employment Law Questions
Hello, my name is Ben and it is my pleasure to assist you with your question today. Have the extra hours you have been doing been consistent?
yes i started on ageny in april last year doing 37.5 i then got offered 15 hours permanent in may but have continualy worked 30 - 37.5 hours per week
I presume you get paid for these extra hours? Are you missing out on anything else as a result of not having a full time contract?
yes, i get paid for the hours but as they are extra i am missing out on more unsociable hours payment
also they are wanting to take more staff on which means i will lose my extra shifts which make me up to a full time wage
Does your contract say that you can be asked to do additional hours as needed?
ok let me get my response ready please
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:
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 see what they say. 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 taking your case to an employment tribunal.
The issue is that you would usually need years of something to be in place rather than months before it becomes implied. Another thing is that your position is rather vulnerable at present because you are not protected against unfair dismissal and the employer could quite easily dismiss you without you being able to challenge this. So if you protest too much and they find you have become a nuisance, they could legally terminate your employment as a result, simply by paying you your notice period. So you can challenge this and ask them to consider offering you a permanent full time contract but be careful about how much noise you make about it because as mentioned your position is somewhat vulnerable until you have at least 2 years’ service with them as an employee (the agency period does not count).
Hello, I see you have accessed and read my answer to your query. 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? I just need to know whether to close the question or not? Thanks