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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 48209
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I work for royal mail and I am on a permanent contract on 32

Resolved Question:

I work for royal mail and I am on a permanent contract on 32 hours and for the last 5 years plus I have worked 39 hours a week, I have asked for a full time contract to no avail is there anything written in employment law that they have to give me a full time contract after working full time hours for this length of time.
Thanks
Mandy
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.

Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today.

Expert:  Ben Jones replied 1 year ago.

How long have you worked there for all in all?

Customer: replied 1 year ago.
8 years and 2 months
Expert:  Ben Jones replied 1 year ago.

Thank you for your response Mandy. I will review the relevant information and laws and will get back to you at the earliest opportunity. There is no need to wait here as you will receive an email when I have responded. Also, please do not responded to this message as it will just push your question to the back of the queue and you may experience unnecessary delays. Thank you.

Expert:  Ben Jones replied 1 year ago.

The only thing you can realistically rely on is that 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.

This is your basic legal position. I have more detailed advice for you in terms of the options you have for taking this further if it is not resolved directly with the employer, 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 is no extra cost and 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. In the first instance you should consider raising a grievance if necessary and use the information provided to argue that this is likely to have become a permanent arrangement due to custom and practice. If the grievance is rejected then your only other option may have to be constructive dismissal, where you are forced to resign as a result of the employer’s alleged breach of contract to refuse to recognise this arrangement. Obviously that should be a last resort but it is there if needed.