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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
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Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Resolved Question:

I’ve been working as an Electrical Engineer with a company since November 2006 covering few sites in Central London.

In July 2009 I found a better paid job with another company but my Contract manager convinced me to stay and in order to help me financially started paying my weekly travelcard so I stayed: It was just a verbal agreement and he told me that I could claim my travel expenses even when I’m off work, which I did continuously since July 2009, even when I was off work because of Holiday or sickness.

That manager was promoted to a higher position and another Contract manager was put in-charge since then.

In November 2014, I filled in my Travel expenses for 3 weeks that I was off work because of sickness but this new Contract manager refused to approve the payment for that period of time. His argument was that the travel expenses were paid to me to enable me to move from site to site.

Even though I told him that the travel expenses have nothing to do with the job I was doing but it was to help me financially he has still refused the payment for that period when I was off sick saying that he spoke to my old Contract manager and he denied that the travel expenses were to help me financially.

I took the matter to our HR so they arranged an informal meeting and during that meeting my new Contract manager changed his mind and decided to pay me as he saw I was determined to take the matter further if I wasn’t paid.

In February 2015 that Contract manager was promoted to a higher position and another new Contract manager was put in-charge and the same scenario is happening again now:

In April I hurt my back and was off sick for 4 weeks and in my return I filled my expenses claim but this new Contract manager is refusing to approve it. I’m thinking about complaining again to the HR and even taking the matter to an employment tribunal. Do I stand a chance?

I was told that if travel expenses were paid to someone for more than 5 years it becomes like a contract even if it was just a verbal agreement, which is my case.

Also, they paid my travel expenses while I was off sick before, are they allowed to not pay me now?

And your help is much appreciated.

Kind regards

Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.
Hello, my name is ***** ***** it is my pleasure to assist you with your question today.
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. There is no specified time period, like 5 years for example, it can be any period although the longer the better
• 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 you are free to raise a grievance with the employer first to try and deal with this internally.
It is impossible to say whether you will be successful or not as it depends on many factors, such as the evidence that is available, if those involved agree to come forward and back up the evidence, etc. So there is always going to be a risk with going to tribunal but it is there if you need it to.
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
Customer: replied 2 years ago.

Good afternoon Ben,

Thank you for your response.

Firstly, could you please clarify more about the following and if it's possible relate it to my case:



  • 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


    Secondly, I do have evidence that my travel expenses were paid to me continuously for nearly 6 years, even during periods when I was off work, either on annual leave or sickness, but I've only been off sick a couple of times.

    So when you said "The number of occasions and over how long a period the terms in question have been applied are important factors when considering whether a term has become implied in a contract", did you mean by "terms" the payment of my expenses in general or just during the periods when I was off sick?

    Thanks in advance.

    Kind regards

    Expert:  Ben Jones replied 2 years ago.
    Hello there, to answer your queries:
    • If the terms are always the same – you are looking for consistency – did they always pay your expenses at all times and regardless of whether you were sick or not? If so then that would work in your favour because if they had varied the occasions when they were paid, for example not always, only from time to time and in various circumstances then that would make the practice less consistent and harder to challenge
    • Publication of the terms – this is more applicable if the terms were something which the workforce as a whole would challenge but this is an individual arrangement so this does not really apply to you as much
    • The final query, where you ask which terms I refer to, it would be the terms you are actually trying to rely on – whether that is the payment of the expenses in general or the payments when you are off sick (or it could be both).
    If your original question has been answered I would be grateful if you could please quickly rate my answer - it only takes a second to do and is an important part of our process. I can still answer follow up questions afterwards if needed. Thank you
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