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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
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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: 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.

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

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