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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 48201
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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When I was interviewed, there was no mentiion of on call work.

Resolved Question:

When I was interviewed, there was no mentiion of on call work. After about 9 months I was askef if I could start doing on call, which I agreed to although no contract change was made...do I have to continue doing this now (been there 6 years)
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.
Hello so I assume you have been doing on call consistently for the last 5 years or so?
Customer: replied 1 year ago.
Yes. I have.
Customer: replied 1 year ago.
I was under the impression that implied terms of contract where applicable to things happening at time of contract acceptance and major changes to contracted hours etc should be written.
Customer: replied 1 year ago.
For info I have a meeting with my HR department todaycat 12 and would like to know whether I should pursue this or not.
Expert:  Ben Jones replied 1 year ago.
Hello, sorry I was offline by the time you had replied. 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. It can apply to anything, minor or major, so your understanding of this is not quite correct because even a major change can become implied even if not written down.
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
So if the above factors apply it is possible for this to have become an implied term and for the employer to expect you to continue doing it.
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
Customer: replied 1 year ago.
Just one question. If there is no official process for on call and how often I need to do it, how can I drastically reduce the amount I do without breaching contract?
Expert:  Ben Jones replied 1 year ago.
The contract terms are whatever has been consistently applied sonyou are looking for inconsistencies, differences etc. It is in the end going to be a negotiating exercise bwteeen you and the employer
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