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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 47413
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I work offshore as a contractor and have worked on the same

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I work offshore as a contractor and have worked on the same rig for 12 years. I have been upgraded to a foreman for the last 2 years but only on a temp basis. These short term upgrades of between 1 month and six months have been continues. I have regularly asked to be upgraded permanently, but have always been denied. There are four of us in these circumstances. These positions are on going, so how long can an employer keep you on temp upgrade basis without having to give you the position full time?
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.
Hello, so just to confirm you are self employed rather than an employee of the company?
Expert:  Ben Jones replied 1 year ago.
Hello, not sure if you saw my initial query above - are you self employed rather than an employee of the company?
Customer: replied 1 year ago.
I am an employee and have been employed for 12 years.
Expert:  Ben Jones replied 1 year ago.
Thank you for clarifying. There are a couple of ways you could try and argue the permanency of this position.
Firstly, if you have been employed in this post on successive fixed term contracts, then once 4 years have passed you will automatically become a permanent employee with the terms under which you were working at the time. So you will have to be employed continuously for 4 years on these fixed term contracts for this to happen.
The other way is if you can show that this had become an implied contractual term. 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 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. I would be grateful if you could please take a second to leave a positive rating (3, 4 or 5 stars) as that is an important part of our process and recognises the time I have spent assisting you. If you need me to clarify anything before you go - please get back to me on here and I will assist further as best as I can. Thank you
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