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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 48176
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I have a flexible working agreement with my company which states

Customer Question

I have a flexible working agreement with my company which states it should have been reviewed after 12 months as it states that it was not permanent. This review never happened and it is now 5 years later and they are now threatening to review and remove it.
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.
Hello what are the reasons for trying to remove it?
Customer: replied 1 year ago.
I am a pilot and they wanted me to move to another fleet I agreed to move and go full time for a short time but required them to return to my part time after a year, they were not happy with this and said that if I continued they would review the agreement and I may not get to keep it even if I did not move fleet
Customer: replied 1 year ago.
I have added the original agreement
Expert:  Ben Jones replied 1 year ago.
Ok thanks I will take a look and reply later this morning
Customer: replied 1 year ago.
Thank you
Expert:  Ben Jones replied 1 year ago.
Thanks for your patience. You were issued with a flexible working arrangement which stated that it is not permanent and would be reviewed after 12 months. No review took place and the arrangement continued in place for several more years and is still in place. The employer is now trying to remove or change this arrangement and your main argument to counter this would be to claim that this has now become an implied contractual term through custom and practice. 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 there was no formal agreement for them to become contarctusl. 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 The employer could of course reject your argument and still proceed with the changes. It then becomes a potential case of changes to an employment contract which gives you further rights and options. This is your basic legal position. I have more detailed advice for you in terms of the rights you have if they try and force the changes through, 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, there I no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you
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Customer: replied 1 year ago.
Thank you for the quick reply if you could advise on my rights as per your answer that would be most helpful.
Expert:  Ben Jones replied 1 year ago.
Thank you. Assuming this had become an implied contractual arrangement, 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.
Thank you for your help I will have a think about what you have said and come back to you.
Expert:  Ben Jones replied 1 year ago.
no worries