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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46183
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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I have re read my contract from 3 years ago. I have discovered

Customer Question

I have re read my contract from 3 years ago. I have discovered that I signed for statutory minimum pay of maternity pay with 6 weeks at 90% and obviously unpaid time off. NHS contracts generally are much more favourable.
A colleague with exactly the same qualifications and has worked for only one year , sensibly negotiated the normal NHS favourable terms of maternity cover ( up to six months with some at full pay and some at half pay.
Our employer is a gP practice and we are both GPs
Does this constitute custom and prcatice , in that her conditions which are favourable should apply to me too? I am just pregnant , I have not told the employers yet and plan to show them a model contract ( BMA) and to discuss this with them
Submitted: 1 year ago.
Category: Law
Expert:  Jo C. replied 1 year ago.
How long have you been there?
Customer: replied 1 year ago.
3 years with more hours by nearly double of the person who has much more favourable conditions
Customer: replied 1 year ago.
am I still waiting for a reply ? should I stay by computer ?
Customer: replied 1 year ago.
(Posted by JustAnswer at customer's request) Hello. I would like to request the following Expert Service(s) from you: Live Phone Call. Let me know if you need more information, or send me the service offer(s) so we can proceed.
Customer: replied 1 year ago.
I am not sure if I should stay by computer or go away and get an answer later , I need to know time scale please ?
Expert:  Jo C. replied 1 year ago.
Sorry let me get a colleague to assist as I have just been asked to attend court.
Expert:  Ben Jones replied 1 year ago.
Hello, my name is ***** ***** my colleague has asked me to assist with your query. I presume you knew of these conditions at the time and were not misled when you singed the contract?
Customer: replied 1 year ago.
no I was not misled..I thought that was normal practice and had not given it any more thought until now
Customer: replied 1 year ago.
I have to go out for half an hour ..i hope that is ok
Expert:  Ben Jones replied 1 year ago.
No problem, I will reply on here shortly and you can pick up when back
Expert:  Ben Jones replied 1 year ago.
Thank you. As you have identified, 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. What will go against you here is that there were conflicting terms in your contract, which you were aware of and had accepted. These will generally take precedence over other term which you believe are implied through custom and practice. Such terms would usually apply when there is nothing in writing or they have not been implemented in your contract and you are trying to include them however if there are already contractual terms that cover the same issues they would be the more certain ones and would be the ones which are likely to apply. This is your basic legal position. I have more detailed advice for you in terms of some case law which deals with this issue, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, there I no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you
Expert:  Ben Jones replied 1 year ago.
Sorry please ignore the above, posted on wrong question - your advice is the initial one above so look forward to hearing from you further thanks
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46183
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and 3 other Law Specialists are ready to help you
Customer: replied 1 year ago.
Is there any such thing as fairness ..the initial contract was drawn up by an manager that was subsequently found to be incompetent.
The new manager is fairer and more experienced and to be fair probably does not know ..yet what is in my contract until I point it out to him
Expert:  Ben Jones replied 1 year ago.
Fairness I this respect would be difficult to argue. Just because a manager was not fair does not mean that the terms are not enforceable. In term of case law, for example in Heatherwood & Wrexham Park Hospitals Trust v Beer, the court held that an employer was not legally obliged to apply the Council Conditions of Service, which were collectively negotiated terms of employment for public sector staff as they were not applied automatically to all staff and there were variations, which were the subject of local collective agreements. There was also no express reference to the conditions in the employee's contract. That, together with the fact that you had specific conditions negotiated and implemented via express agreement, will make it a difficult argument I’m afraid.

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