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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 44903
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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my employers are asking me to work weekends after 25 years.

Customer Question

my employers are asking me to work weekends after 25 years. My hours are on contract for 48 hours but they have never enforced this up till now. I am salaried rather than hourly paid, can they now make me do this
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. How long have you worked your current shift pattern?

JACUSTOMER-wq1jhdp7- :

I have worked the same shift pattern for the 25 years in total

Ben Jones :

ok thanks let me get my response ready please

JACUSTOMER-wq1jhdp7- :

ok

JACUSTOMER-wq1jhdp7- :

I only work 40 hours at the moment, they are advising I need to work saturday mornings on a rota for no extra pay and sunday mornings on a rota for 4 hours for a basic £100

Ben Jones :

Even though you may have a written contract in place, 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 that as such changing them now would amount to a change to your contractual terms and conditions. They could of course deny that and refuse to discuss the matter and if that is the case then you can consider raising a grievance and then only realistically challenge this by taking your case to an employment tribunal.

JACUSTOMER-wq1jhdp7- :

ok thanks may have to get a solicitor if dont get anywhere and want to take it further

Ben Jones :

a solicitor would only really get involved once your employment terminates, for example if you decide to leave as a result or are dismissed for refusing to comply

Ben Jones :

Hope this clarifies your position? If you could please let me know that would be great, thank you

JACUSTOMER-wq1jhdp7- :

yes ok thanks.

Ben Jones :

you are welcome

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