Many thanks for your patience. Whilst there is nothing specific in law which says what the employer should use in these circumstances, as a starting point it would be the employee’s contracted position, so whatever is in their contract. However, there may be a situation where an employee’s actual job bears no direct resemblance to what is in their contract. What a tribunal would then look at is whether their current job is on which has become their contracted position, in effect replacing their contractually defined one. This does not simply happen if they have been doing a job for a specific amount of time or at the time the restructure is happening. To be able to request that their current position is taken into account the employee must be able to argue that it has become their contracted role 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. 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:
· 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
· Whether the terms are always the same - large differences will make the argument they had become implied weaker
· 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.
The issue here is that with less than 2 years service your rights are rather limited as the only way to challenge this would if you were dismissed and claim unfair dismissal or resign and claim constructive dismissal – both of which require 2 years service which unfortunately you do not have. So you can raise the argument but not legally challenge it.
I hope this has answered your query. I would be grateful if you could please take a second to leave a positive rating by selecting 3, 4 or 5 stars - this is an important part of our process and recognises the time I have spent assisting you. If you still need me to clarify anything else, please get back to me on here and I will assist further as best as I can. Thank you