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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 44936
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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i am on a 15 hour contract but have been doing full times hours

Customer Question

i am on a 15 hour contract but have been doing full times hours for a year, does my employer have to increase my contract through contractual rights
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.

Ben Jones :

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?

JACUSTOMER-ou76yuri- :

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

Ben Jones :

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?

JACUSTOMER-ou76yuri- :

yes, i get paid for the hours but as they are extra i am missing out on more unsociable hours payment

JACUSTOMER-ou76yuri- :

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

Ben Jones :

Does your contract say that you can be asked to do additional hours as needed?

JACUSTOMER-ou76yuri- :

no

Ben Jones :

ok let me get my response ready please

Ben Jones :

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 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).

Ben Jones :

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

Expert:  Ben Jones replied 2 years ago.
Hello Kelly, could you please let me know if I have answered your original question or if you need me to clarify anything else for you in relation to this – this is needed so I can either keep the question open or close it if no further advice is required? Thank you
Expert:  Ben Jones replied 2 years ago.
Hello this question is still open, can you please let me know if it has been answered so I can close it if it has>? Many thanks

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