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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46159
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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5 years ago I signed my employment contract in which it states

Resolved Question:

5 years ago I signed my employment contract in which it states I am entitled to 21 days payed annual leave, which I used and has been honoured by the company. Now due to some rejigging to the contracted hourly pay rate, I am hearing that my contract should have stated 20 days payed annual leave, where do I stand?
Submitted: 1 year ago.
Category: Employment Law
Expert:  Remus2004 replied 1 year ago.
You mean they are trying to vary this clause?
Customer: replied 1 year ago.
I believe so , I have only heard today they looking at it?
Customer: replied 1 year ago.
No threats or intentions have been made by the company yet, but feel I should be ready to defend my valuable 21st day.
Customer: replied 1 year ago.
Hi Remus2004 , I'm sitting here a while now hoping I have spent a wise £29? Never having to use this kind of service before I'm imagining your very busy, but please throw me a nod to suggest you,re still there?
Expert:  Remus2004 replied 1 year ago.
Sorry, I lost my connection.I will respond soon. I'm travelling and the connection keeps dipping in and out.
Expert:  Ben Jones replied 1 year ago.
Hello, my name is ***** ***** my colleague has asked me to assist with your query as she is experiencing some connection issues. You would be able to challenge any proposed action by the employer to vary this clause by stating that it has been consistently applied for the past 5 years. The first main thing is that the 21 days are state in your contract. However, errors do occur and it could have indeed been a genuine and unintentional administrative error that they stated it is 21 days instead of 20. If the employer wanted to correct this the they should have done at the earliest opportunity, not 5 years later. If this has been applied consistently for that time then it could have become an implied contractual term through custom and practice, even if it was an error to start with. So this would be the main point of argument in the circumstances. This is your basic legal position. I have more detailed advice for you in terms of the law on implied terms through custom and practice, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, leaving a rating will not close the question and we can continue this discussion. Thank you
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46159
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and other Employment Law Specialists are ready to help you
Expert:  Ben Jones replied 1 year ago.
Thank you. As mentioned, 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, or if they are challenged as being down to error. 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:{C}· 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{C}· Whether the terms are always the same - large differences will make the argument they had become implied weaker{C}· 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.

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