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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 48990
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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, I am 27 and a UK national working as a merchant navy deck

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I am 27 and a UK national working as a merchant navy deck officer employed by a UK company. I have been working for this company for almost 3 years now, during this time I have constantly sailed/worked in the rank above that to which I am contracted for covering a single position onboard the ship, however I have never received the increased rate of pay. Now they have decided to advertise the position internally and I may end up being demoted. During my time my work has been to the highest standard with no accidents or incidents. This is reflected in my feedback from senior crew and company appraisals.
I was wondering if I have any legal rights in a situation like this in order to protect myself from potentially not being able to carry on in this position and face a demotion?
Many Thanks
Hello, my name is ***** ***** it is my pleasure to assist you with your question today. Do you have a contract which says what you are employed as?
Customer: replied 2 years ago.

Yes I have a contract of employment which states that I am employed as a 3rd Deck Officer, however since signing the contract and being promoted I have always sailed(worked) in the next rank up which is 2nd Deck Officer.

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, in this case the job you have been doing all this time, 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 you are free to raise a grievance with the employer first to try and deal with this internally.
I hope this has answered your query. Please take a second to leave a positive rating, or if you need me to clarify anything before you go - please get back to me and I will assist further as best as I can. Thank you
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