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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 47641
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I have been working as a cleaner in an office building for

Customer Question

I have been working as a cleaner in an office building for a logistic company for almost 8 years. I have for the most part worked in the early hours of the morning before office staff comes in. Now the health and safety officer wants to change my hours to a time when office staff will be in making it more difficult and probably "less friendly" because I'll feel I'm in the way. It is difficult as I work another part time job and have done so even prior to taking on this post. In addition I have also taken on a third job which occurs about 3 times a year invigilating exams. I can not afford to give up any but the logistic health and safety officer seems to be bent on not being reasonable or flexible so that I can maintain my employment with all three. Also my contract is for 2.5 hours daily and she has cut it to 2. The government is all for having people in the work force but I am wondering what recourse I have to keep the jobs I have.HELP!
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.
Ben Jones : Hello, my name is ***** ***** it is my pleasure to assist you with your question today. Are your hours of work mentioned in your contract?
JACUSTOMER-72ce8bju- :


JACUSTOMER-72ce8bju- :

The hours of 2 and a half per day Monday through Friday are in the contract but not the time. I have been going in very early for 4 + years as it meant I could accomplish more in the time constraints of the 2.5 hours as I am the only cleaner. According to what has been said it is the insurance company Croner that insists I am in when others are in for health and safety reasons so I've been led to believe. The Head of the company was willing to ask if there was a time between 8 and 5 pm that I could come in that would not alter my other employment and I confirmed that the afternoon would be acceptable and would allow me to keep my other 2 jobs. Even the Croner webpage includes an article on Flexi-hours.

JACUSTOMER-72ce8bju- :

It seems the health and safety person is the one insisting on me coming in in the morning therefore hurting my other already existing posts not to mention my own feelings of well being.

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. So in your case even though the times you come in may nt have been written down, you can argue they have become contractually binding.

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 considering raising a formal grievance with the employer.

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

JACUSTOMER-72ce8bju- :

While it does help clarify it a bit re "custom and practice" because I mentioned to you previously that I have been going in at those times for at least 3 to 4 years, and therefore is more than just a whim or a few months, it should definitely feel as if it can be implied as practice, I am left wondering if in fact it could be raised at all. The main point being on their part the supposed insurers guide to my hours and from their side being the lack of flexibility (for the time being) I am still left wondering what my next point of recourse is and whether I have a say in it at all ... given the fact that I have been an employee with them for 8 years. There has not been a question raised about my abilities or conduct ever. I doubt a letter of grievance would be taken with any seriousness at this company.

Ben Jones :

so to check - are you employed directly by the company that is making the request to change your hours, or do you just work on their premises and your employer is someone else?

JACUSTOMER-72ce8bju- :

I work on the premises of the employer. I don't know however whether they have gone with a new insurance company that is dictating the change or not, but the only honest answer I believe I have had is that it is because of this insurance company that my times must change.

Ben Jones :

Ok it would matter whether the changes are dictated by the employer or by a third party, like one of their clients. If it was just the employer’s decision then your position would be stronger. However, if this was dictated by a third party then the employer may have been left with no option but to comply and even if you can show custom and practice it may be something out of their control. If you refuse to do these hours there is case law that could even justify a dismissal in the circumstances because you are not able to do something that a third party with influence over the employer has requested and in the absence of anything else that you can do then it may be a fair dismissal for ‘some other substantial reason’

Can I clarify anything else for you please?

JACUSTOMER-72ce8bju- :

No. And not the answer I was looking for or hoping for. The third party wants me to work when others are present. I am willing to change to the afternoon even though not happy about it. The one person at the company is hell bent on having me in the morning which would impact on my other employment. If I am willing to bend why can't they?

Ben Jones :

I cannot say why they may be difficult - only they know that. But all I can tell you is the legal position and I understand it may not always be what you were hoping for but I cannot change that I'm afraid

Ben Jones :

Can I clarify anything else for you in relation to this?

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