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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 48795
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I have worked same company years and during

Customer Question

I have worked for the same company for 32 years and during this time I have received overtime for emergency response workload to gas escapes and metering workloads outside my normal working hours. These workloads have been a constant over this period and should have been changed to shift patterns covering a 24hr workload. This was never done as this would need a shift allowance payment of 26% of my base salary, which would become pensionable, so the company has decided against this. The standby emergency rota is for duty managers, which covers two grade levels and a wide range of basic pay. The company has decided to removed the more senior managers on the duty rosta due to their higher based salary costs and populate the rota with less experienced junior staff. The financial impact is a 30% pay cut overnight with no compensation or financial support during the transition. Is there any employment law that covers this in the UK?
Regards
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. Is the overtime entitlement included in your contract?
Customer: replied 1 year ago.
My contract states I will be expected to undertake standby duties as required by the company
Customer: replied 1 year ago.
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Expert:  Ben Jones replied 1 year ago.
What about the payment aspect for such duties?
Customer: replied 1 year ago.
I receive a small retainer to be available about £24.64 per night Mon to Fri, £49.28 for Sat and £73.92 for Sunday. I then receive 1.5 times my basic salary for Monday to Saturday and 2 time for Sunday. The total for the year is about £20,000
Expert:  Ben Jones replied 1 year ago.
Your main argument here would be to state that this practice has become an implied contractual term due to custom and practice. This makes the practices in question 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'. If they still proceed with the changes then it will really be treated as a change to your contract of employment and needs to be challenged as such. This is your basic legal position. I have more detailed advice for you in terms of the options you have if changes to your terms and conditions are proposed, 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
Customer: replied 1 year ago.
Does the fact that I have been doing this for about 30 years and have received payment for that period help? I have copies of workload profiles and payment for the duties on file. I can confirm the workload is still there and is being done by others. I was on a rota 1 in every 6 days, but I have been removed and the rota is now 1 in 5. I was the more senior person on and they have left the 5 junior managers on doing the same workload so it is not that the work has diminished.
Expert:  Ben Jones replied 1 year ago.
Yes certainly, that is a very long time and assuming t was consistent for that period it would add extra weight to your argument. So there is definitely a good argument that it was a an implied contractual term through custom and practice.
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Customer: replied 1 year ago.
Thanks very much this has been a great help. I will persue with my employer direct, buy if I need legal support are you able to give me an estimate of what the costs might be?
Expert:  Ben Jones replied 1 year ago.
If you mean my costs unfortunately I cannot take on clients through this site. If you mean in general, then it can vary considerably. I would say do not consider legal action just yet, even if you have to claim you can do this yourself without the use of solicitors, but if you need to use one it could be several hundred pounds for more basic assistance , up to a couple of thousand for a full tribunal representation. For now, please find some information on how to deal with changes to your contract: There are a few ways in which an employer may try and make changes to an employee’s contract of employment. These are by:· Receiving the employee’s express consent to the changes.· Forcefully introducing the changes (called 'unilateral change of contract').· Giving the employee notice to terminate their current contract and then offer them immediate re-engagement under a new contract that contains the new terms. If the changes are introduced without the employee's consent, then the following options are available: 1. Start working on the new terms but making it clear in writing that you are working ‘under protest’. This means that you do not agree with the changes but feel forced to do so. In the meantime you should try and resolve the issue either by informal discussions or by raising a formal grievance. 2. If the changes fundamentally impact the contract, for example changes to pay, duties, place of work, etc., you may wish to consider resigning and claiming constructive dismissal. The resignation must be done without unreasonable delay so as not to give the impression that the changes had been accepted. The claim must be submitted in an employment tribunal within 3 months of resigning and is subject to you having at least 2 years' continuous service. You would then seek compensation for loss of earnings resulting from the employer's actions. 3. If the employment is terminated and the employer offers re-engagement on the new terms that could potentially amount to unfair dismissal. However, the employer can try and justify the dismissal and the changes if they had a sound business reason for doing so. This could be pressing business needs requiring drastic changes for the company to survive. If no such reason exists, you can make a claim for unfair dismissal in an employment tribunal. The same time limit of 3 months to claim and the requirement to have 2 years' continuous would apply.
Customer: replied 1 year ago.
Thanks for your time!!
Expert:  Ben Jones replied 1 year ago.
No worries, all the best