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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 48776
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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There, I had a flexible work arrangement with my manager

Customer Question

hello there, I had a flexible work arrangement with my manager for over 8 years and now the new manager had said because it is not in writing with HR that arrangement may not be valid, although everyone knows what that flexible arrangement is - I am aware that this may be tantamount to a verbal agreement and therefore can be valid from actions, evidence etc but what else can I use to establish that this was a valid arrangement please?
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.
Hello, my name is***** am a qualified solicitor and it is my pleasure to assist you with your question today.can you tell me why the flexible arrangement was put in place do you have care commitments.
Customer: replied 1 year ago.
yes, my parents are elderly in their 80s and live not to far from me and I have 2 children 15 and 11 - I also recently have my partner who has been diagnosed with an illness that may also require additional care requirements
Customer: replied 1 year ago.
i work from home every friday and have done so for the past 8 years but I am now being told by the new manager that as there are no arrangements with HR that this may no longer be honoured.
Expert:  Ben Jones replied 1 year ago.
Thank you for your response. I will review the relevant information and will get back to you as soon as possible. Please do not respond to this message as it will just push your question to the back of the queue and you may experience delays.
Expert:  Ben Jones replied 1 year ago.
Many thanks for your patience. 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
Customer: replied 1 year ago.
Thank you. Would HR need to be aware of this (the implied terms) for it to be valid? Also if they want to change these terms by giving me notice what is a reasonable time. I think it is 9 weeks but is this a legally recognized period?
Expert:  Ben Jones replied 1 year ago.
No, it is not necessary for HR to have been aware of this - their knowledge of this does not determine whether these terms were implied or not. As to the notice period, it would usually be the notice period required to terminate your employment, so a week for every full year of employment, up to a maximum of 12 weeks. If your original question has been answered I would be grateful if you could please quickly rate my answer by selecting 3, 4 or 5 starts at the top of the page - 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
Ben Jones and 2 other Employment Law Specialists are ready to help you
Customer: replied 1 year ago.
Quick question. So I have had my chat and I have been asked to put in an application to formalise, however my other flexibility is being question I.e I work varied hours so I would like to ensure the application takes into consideration of the last 8 years is there a clause or sentence which I could use to note the implies terms of my arrangement that you could provide please?
Expert:  Ben Jones replied 1 year ago.
the key phrase here is that the terms were 'implied over time through custom and practice' then you need to point them to the terms which were consistently applied over time
Customer: replied 1 year ago.
Thank you and Merry Christmas. Agape Charlie
Expert:  Ben Jones replied 1 year ago.
You are welcome and a Happy Christmas to you too