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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 47875
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I've mistakenly increased employees overtime rate to 1.5x

Customer Question

I've mistakenly increased employees overtime rate to 1.5x basic instead of 1.33x basic and paid the extra for last 12 weeks. The employee received nothing in writting about the increase. Can I now change the rate back to 1.33x basic?
Submitted: 11 months ago.
Category: Employment Law
Expert:  Ben Jones replied 11 months ago.

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

Expert:  Ben Jones replied 11 months ago.

How long ago did the error occur?

Customer: replied 11 months ago.
on payment date 15/07/16. They have had 13 weekly payments at wrong rate.
Expert:  Ben Jones replied 11 months ago.

OK thank you, ***** ***** it with me. I am in court today so will prepare my advice during the day and 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. Thank you.

Expert:  Ben Jones replied 11 months ago.

Yes you should be able to change the rate back, especially as it was initially introduced in error. The employees would have been able to eventually try and argue that this rate had 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. 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.

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.

So if this has only been in place for 13 weeks, was not properly communicated to them and was corrected as soon as the error was spotted it is unlikely they can try and argue it had become a contractual term.

I hope this has answered your query. I would be grateful if you could please take a second to leave a positive rating (3, 4 or 5 stars) as that is an important part of our process and recognises the time I have spent assisting you. If you need me to clarify anything before you go - please get back to me on here and I will assist further as best as I can. Thank you

Expert:  Ben Jones replied 11 months ago.

Hello, I see you have read my response to your query. If this has answered your question please take a second to leave a positive rating by selecting 3, 4 or 5 stars from the top of the page. I spend a lot of time and effort answering individual queries and I am not credited for my time until you leave your rating. If you still need further help please get back to me on here and I will assist as best as I can. Many thanks.

Expert:  Ben Jones replied 11 months ago.

Hello, do you need any further assistance or are you happy with the above response? Look forward to hearing from you.