Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today. Does this contract just allow them to reduce her hours as they wish?
Thank you. The contract would only be legal if she had known about it and was aware of its terms. It is not possible for the previous employer just to have had a generic contract in place, which she had never seen and had a chance to consider, then to argue that she is bound by its terms. If she has never seen this contract or its contents and never had the chance to consider it and then accept or reject it.
Another consideration is the fact that she has done these longer hours consistently for so many years. 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. In this case she can argue that the longer hours – 30 initially and now 25 are her contracted hours due to custom and practice, regardless of there being a contract which says otherwise. This would all give her the chance to argue breach of contract and potential constructive dismissal if needed.
This is your basic legal position. I have more detailed advice for you in terms of the options she has on taking this matter further, 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 is no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you
Thank you. As mentioned, this could potentially amount to constructive dismissal, which occurs when the following two elements are present:
· Serious breach of contract by the employer; and
· An acceptance of that breach by the employee, who in turn treats the contract of employment as at an end. The employee must act in response to the breach and must not delay any action too long.
A common breach by the employer occurs when it, or its employees, have broken the implied contractual term of trust and confidence. The conduct relied on could be a single act, or a series of less serious acts over a period of time, which together could be treated as serious enough (usually culminating in the 'last straw' scenario).
The affected employee would initially be expected to raise a formal grievance in order to officially bring their concerns to the employer's attention and give them an opportunity to try and resolve them. If the issues are so bad that the employee can't even face raising a grievance and going through the process, or if a grievance has been raised but has been unsuccessful, then they can consider resigning straight away.
If resignation appears to be the only option, it must be done without unreasonable delay so as not to give an impression that the employer's breach had been accepted. Any resignation would normally be with immediate effect and without providing any notice period. It is advisable to resign in writing, stating the reasons for the resignation and that this is being treated as constructive dismissal.
Following the resignation, the option of pursuing a claim for constructive dismissal exists. This is only available to employees who have at least 2 years' continuous service. There is a time limit of 3 months from the date of resignation to submit a claim in the employment tribunal.
An alternative way out is to approach the employer on a 'without prejudice' basis (i.e. off the record) to try and discuss the possibility of leaving under a settlement agreement. Under a settlement agreement, the employee gets compensated for leaving the company and in return promises not to make any claims against the employer in the future. It is essentially a clean break, although the employer does not have to agree to it so it will be subject to negotiation. In any event, there is nothing to lose by raising this possibility with them because you cannot be treated detrimentally for suggesting it and it would not be used against her.
ok that is good, if they ignore it then she can go down the grievance route before considering her next options as er my response above
in terms of number of hours I would agree yes
it is not a formal requirement and in any event she is going to rely on the historical arrangements over the years as well so previous evidence will also be helpful
yes certainly they can amount to evidence which she can use if needed
no set dates in law, so it is up to her. A reasonable time to wait before contacting them again would be 7-10 days
Great news, thanks for the update and all the best