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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 49465
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I work for the nhs. My contact says that I can be moved to

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I work for the nhs. My contact says that I can be moved to any location in the trust if service needs demand this. My contract says that I work 30 hrs a week and when I took the job I told them my day off was on Fridays. However this was not in my contract. I have worked mon to Thursday for a year and I have been told that I have to change my day off to Thursday which breaks up my week and I
Don’t want to do this.They have told me now I have to and that my day off is not guaranteed and they can dictate this. Do I have any argument?

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

How long have you worked there for?

NB: Due to the late hour I am going offline shortly but will reply in the morning, thanks

Customer: replied 1 month ago.
I have worked for this team for 1 year but the trust since 2009 and the nhs for 30 years continuously. My last job was a grade higher but I took another job at a lower grade a year ago in another department as I was travelling an hour to get to work and they would not move me to a closer location. I have a five year old child and wanted to prioritise her as I am an older mother aged 48 and thought my base would be nearer. How’re it has worked out that my new contract when I took the new post includes weekends and out of hours work if the service demands so if I cause waves I could be posted anywhere in the Trust. I am a nurse and I feel like leaving because of this. My manager is meeting me tommorrow to discuss this but she basically said today. Nobody can be guaranteed what day they have off and we need you to run a clinic on Fridays. Concurrently I have just qualified as a CBT therapist and have been told that I cannot practice as a therapist in the team which I need to maintain my professional registration as a therapist. Their argument is that there is no therapist post commissioned however it’s madness as the trust funded this training. Actually it was my manager from my previous post that funded this training. This is just to set context but my real immediate problem is that I do not want to change my day off. I rang Human Resources and they said that it’s up to my manager and if the service needs me then I have to work what days they say. I feel backed into a corner

Hi there, many thanks for your patience. If your nominated working days or days off are not stipulated in the contract, and it was never communicated that you have a permanent set of working days, they can potentially vary these. Your only argument on challenging this would be to try and show that it has become an implied contractual term.

There is a principle in law known as ‘custom and practice’, under which certain terms may become implied into an employment contract. 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 tribunals 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 in any negotiations.

From a legal perspective, to become an implied term a practice must be "reasonable, notorious and certain". In simpler terms this means it must be well established over a period of time, known to employees and clear and unambiguous. So it would need to have been clearly communicated to staff so that they have a degree of expectation for it and then it must have been consistently applied for a substantial period of time. Therefore, something that is uncertain, not widely communicated or 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 into 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

Whilst the argument of custom and practice can be raised with the employer in negotiations, they could of course refuse to accept it and if that is the case it can only realistically be challenged by taking this to an employment tribunal. Before that option is pursued it may also be worth raising a formal grievance to give the employer one last chance to resolve this internally.

So it does mean that you can raise this as an argument but if the employer does not take it into account and still proceeds with the changes, you may have to eventually resign and claim constructive dismissal as you cannot force them to keep the current arrangement.

Please take a quick second to leave a positive rating for the service so far by selecting 3, 4 or 5 stars above. I can continue answering follow up questions and in particular can also discuss the steps you need to follow if you are to take this further legally. There is no extra cost for this - leaving your rating now will not close the question and means we can still continue this discussion. Thank you

Ben Jones and other Employment Law Specialists are ready to help you

Thank you. As mentioned in the end this may result in constructive dismissal by you. If you do decide to resign you have 3 months from the date the employment ends to take this further.

Before a person can make a claim in the employment tribunal, they would be required to participate in mandatory early conciliation through the Advisory Conciliation and Arbitration Service (ACAS).

The purpose of this process is to allow ACAS to mediate between the claimant and respondent to agree on an out of court settlement in order to avoid the need for legal action in tribunal. The respondent does not have to engage in these discussions, or if they do and the talks are unsuccessful, the claimant will be issued with a certificate allowing them to make a claim.

However, if a settlement is reached, the claimant would agree not to proceed with the claim in return for the agreed financial settlement. Other terms can also be agreed as part of the settlement, such as an agreed reference.

To initiate the conciliation procedure ACAS can be contacted online by filling in the following form (https://ec.acas.org.uk/Submission/SingleClaimantPage), or by phone on 0300(###) ###-####