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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 47377
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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I as an employee has had the same rota for several years. While

Resolved Question:

I as an employee has had the same rota for several years. While on holiday in March this year the personal manager changes my rota to suit another employee. This results in a pay cut. I am 63 this year and partial disabled. I had a stoke in 1987 which has left me with very little use in left hand/arm I am a cleaner in a large super market but was a precision engineer before my stroke
Submitted: 3 years ago.
Category: Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today.

Ben Jones :

Does your contract say anything about your rota or what the employer can do to change it?

Customer:

Hours of work you will be required to work a 5 day 39 hours week.the work will include late nights and your schedule (provided on a weekly basis) may be altered at a managements discretion in accordance with the needs of the business. No one wanted to work on sundays so I had Sunday working on my rota for several years Another cleaner wanted (who is part time) to cut her hours down but not her money so she does Sundays now. In the stores hand book it states Sunday is included in your contract now I have no Sundays now.

Ben Jones :

So you have had Sundays taken away from your rota?

Customer:

Yes

Ben Jones :

Has the rota you have worked over the last few years been consistent or does it change?

Customer:

Only when one of the cleaners go on hoilday

Ben Jones :

you mean it only changes then?

Customer:

mostly sometimes personal changes hours at short notice. like from 09-00 16-00 to 07-30 15-30. IT has got t

Customer:

that should have read 09-00 18-00 to 07-30 to 15-30

Customer:

Are you still there to answer

Ben Jones :

yes I just need to get my response ready

Ben Jones :

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 raising a formal grievance or taking your case to an employment tribunal.

Customer:

Thanks

Ben Jones :

you are welcome

Customer:

'I cannot give you the credits as it states that you have not finished answering but Is it possible for you to answer yes or no, can personal alter rotas at someone else's request

Ben Jones :

generally the answer is no, but the issue really is not who requested it but how the employer has gone about it...and this would then take us back to the original position as explained above

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