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Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. What would you like to achieve here?
I would like to whether when our company which is buying the assets of another company, needs to provide a car and mobile for an employee who has no contract but has worked for the original company for 30 years and had a car for a number of years due to his position as a director. Because he has no contract to state he is entitled to a car and mobile do we have to provide him with one.
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Many thanks for your patience. When you are taking over the assets of another company and continuing to run the business, a piece of legislation known as TUPE would most likely apply which would serve to protect the employees of the outgoing employer and would apply to transfer them to the new employer, protecting all of their existing terms and conditions. It means you take them on with their existing contracts and keep their terms and conditions as they were before the takeover.
When it comes to their terms, there is a principle in employment law where certain terms can become implied in 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.
Case law has suggested that the following are important factors when considering whether a term has become implied in a contract:
So even if the provision of the car and mobile were not written down anywhere in a contract, they could have become an implied contractual term simply because they had been continuously applied for some time. As such they would be treated in the same way as if they had been written down in the employee’s contract.
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