How JustAnswer Works:

  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.

Ask Ben Jones Your Own Question

Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 45375
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
29905560
Type Your Employment Law Question Here...
Ben Jones is online now

i work in a dental practise i am a dental nurse. after the

Resolved Question:

i work in a dental practise i am a dental nurse. after the surgery closes i clean the surgery 5 nights a week. i get my paid for both jobs in one pay packet. i have been doing this for 3 years.
my employer is saying he wants to get an outside company in to do the cleaning and that i wont be required to do it. this will cost me £200 a month. my employer says he can do this as the cleaning is classed as overtime.
i totally disagree with this, what are my rights.
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.
Ben Jones :

Hello, my name is ***** ***** it is my pleasure to assist you with your question today.

Ben Jones :

There are a couple of ways to go about this. Firstly, 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, although to do so you would need to resign and claim constructive dismissal.

Another angle is that you can argue you are protected under a piece of legislation known as TUPE. This is where a new employer takes over an existing service and those employees who work and provide that service currently automatically transfer to that new employer and continue doing the same job, just for a new employer. So that new employer can have a duty to take you on to continue providing the cleaning services so you would be employed in your usual job by the current employer and the cleaning job by the new employer. A refusal to take you on would give you rights to challenge the new employer for failure to follow TUPE. Again, this is something which would have t be challenged in the employment tribunal but at least the above information should give you something you can use to take to the employer for now to argue your position.

I hope this clarifies your position? If you could please quickly let me know that would be great, as it is important for us to keep track of customer satisfaction. Thank you

Customer:

I was feeling bullied and pressured into accepting the situation, with your reply I now know I have

Customer:

rights and will now fight my corner thank you

Ben Jones :

you are welcome, all the best

Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 45375
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and 2 other Employment Law Specialists are ready to help you

What Customers are Saying:

 
 
 
  • Thank you so much for your help. Your answers were really useful and came back so quickly. Great! Maggie
< Previous | Next >
  • Thank you so much for your help. Your answers were really useful and came back so quickly. Great! Maggie
  • A quick response, a succinct and helpful answer in simple English. I believe I can now confront the counter party with confidence -- worth the 30 bucks! Rick
  • Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help. Mary C.
  • This expert is wonderful. They truly know what they are talking about, and they actually care about you. They really helped put my nerves at ease. Thank you so much!!!! Alex
  • Thank you for all your help. It is nice to know that this service is here for people like myself, who need answers fast and are not sure who to consult. GP
  • I couldn't be more satisfied! This is the site I will always come to when I need a second opinion. Justin
  • Just let me say that this encounter has been entirely professional and most helpful. I liked that I could ask additional questions and get answered in a very short turn around. Esther
 
 
 

Meet The Experts:

 
 
 
  • Ben Jones

    Ben Jones

    UK Lawyer

    Satisfied Customers:

    10492
    Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
< Previous | Next >
  • http://ww2.justanswer.com/uploads/BE/benjones/2015-12-1_0437_ennew.64x64.jpg Ben Jones's Avatar

    Ben Jones

    UK Lawyer

    Satisfied Customers:

    10492
    Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
  • http://ww2.justanswer.com/uploads/KA/Kasare/kasare.64x64.jpg Kasare's Avatar

    Kasare

    Solicitor

    Satisfied Customers:

    41
    Solicitor, 10 yrs plus experience in civil litigation, employment and family law
  • http://ww2.justanswer.com/uploads/OS/osh/2015-7-7_19268_gettyimagesb.64x64.jpg Joshua's Avatar

    Joshua

    Laywer

    Satisfied Customers:

    49
    LL.B (Hons), Higher Prof. Dip. Law & Practice
  • http://ww2.justanswer.com/uploads/taratill/2010-03-09_111600_phpsik04M_c2AM.jpg taratill's Avatar

    taratill

    Solicitor

    Satisfied Customers:

    671
    15 years experience of advising on employment law matters
  • http://ww2.justanswer.com/uploads/LI/li/2014-12-19_134845_lexughes.64x64.jpg Alice H's Avatar

    Alice H

    Solicitor Advocate

    Satisfied Customers:

    99
    Partner in national law firm with 20+ years legal experience
  • /img/opt/shirt.png tdlawyer's Avatar

    tdlawyer

    Laywer

    Satisfied Customers:

    53
    Lawyer with 9 years experience in employment related issues.
 
 
 

Related Employment Law Questions