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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46765
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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I am a legal secretary. During a staff meeting last week,

Resolved Question:

I am a legal secretary.

During a staff meeting last week, I, and everyone else, was informed that I was moving from the Commercial Department to the Residential Department. This came as quite a shock as I am happy in my job in the Commercial Department. How should I respond?
Submitted: 2 years ago.
Category: Law
Expert:  Ben Jones replied 2 years ago.

Ben Jones : Hello, my name is ***** ***** it is my pleasure to assist you with your question today. How long have you worked there for?
Customer:

13 years

Ben Jones :

Thank you and do you have a written contract which details where you work? For example does it state you are employed as a legal secretary in a specific department? Also how long have you been in this department?

Customer:

My contract does not state a specific department. When I started work there, it was a small firm and all secretaries did all aspects of legal, it is only in the last 8 years that the firm merged with other firms that departments were defined. I have never moved departments.

Ben Jones :

So for the last 8 years you have always worked in the Commercial dept?

Customer:

yes

Ben Jones :

ok thanks let me get my response ready please

Ben Jones :

Generally employees would be referring to their contract of employment to see what they are contracted to do and what rights they have in terms of the terms they and their employers are bound by. If something is a contractual term then the employer cannot easily change it and would be doing so either with the employee’s consent or by forcing it through at the risk of making this into a breach of contract matter.


 


In your case there is nothing specific in your contract which makes the department you work in your contracted position so instead you may have to look at implied terms to argue your case.


 


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. If necessary you may also pursue this through the formal grievance procedure at work. 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 that can only be done if you resigned and then made a claim for constructive dismissal against the employer.

Ben Jones :

Hope this clarifies your position? If you could please let me know that would be great, thank you

Customer:

Thank you, ***** ***** make it clearer.

Ben Jones :

You are welcome

Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46765
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
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