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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 47416
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I work NHS and have been seconded into my current

Customer Question

Hello, I work for the NHS and have been seconded into my current role for 5 years and 7 months at Band 4 37.5 hours. We are undergoing an admin review and I have been told I have to go back to my substantive post which is band 3 30 hours. I have had stage 2 grievance and they are adamant that I have a substantive post I have to go back to it and they have actually appointed someone else to my seconded post. I have bee seconded onto a fixed term contract and trust policy for fixed term contracts state at 4 years there is to be no more contracts given unless there is a justifiable reason given to HR. No reason was given but am now having to go back to a post I have not done for 6 years and I will be unable to live on the reduction of salary.
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.
Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today. Was there a formal agreement which said this was only a temporary appointment and that you could be moved back to your substantive post at any point? please note that due to the time I am going offline shortly so will not be able to respond until the morning, thanks
Customer: replied 1 year ago.
no there wasn't, I have been verbally told for the last 3 years that once the admin reiew was sorted I would be slotted into this post. I am seconded onto a fixed term contract and the fixed term policy clearly states ar 4 years the role is tone turned substantive, but because I have a substantive role the trust is saying the policy does not apply to me.
Expert:  Ben Jones replied 1 year ago.
Hello again, the policy on fixed term contracts you are referring to would deal with no more fixed term contracts being given to you if you were employed in such contracts for at least 4 years. So in effect if you continued in the position after the 4 years and the employer gave you more fixed term contracts to keep you in the position, you can say that you should not be employed under such contracts any longer. However, it does not prevent them from placing you back into a substantive post if you really did have one. So the issue is whether you were told that you retained a substantive post or if the way you were treated in the current position was such that it appears you had been placed there permanently. It is all a question if fact I’m afraid, there is no simple way to determine that and certainly there will be no straightforward yes/no answer. You have used the grievance procedure, which at this stage is the best option. If you have followed that all the way to the end, and the decision is not overturned, then your only option is to resign and claim constructive dismissal, arguing breach of contract by the employer. In your support you can try and argue that the secondment post had become your contracted position though custom and practice. This is where you have done something for a sufficiently long period and no the understanding it would be permanent and it has become your contractual position even if there was nothing I writing to confirm that. This is your basic legal position. I have more detailed advice for you in terms of the law on custom and practice and how you can try and rely on it, 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
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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. 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.
Customer: replied 1 year ago.
Thank you Ben, your advice is invaluable. I will let you know the outcome. Thanks Andrea
Expert:  Ben Jones replied 1 year ago.
Please do and all the best for now

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