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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 48743
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I would like advice on the following situation. My sister

Customer Question

Hello.
I would like advice on the following situation.
My sister has worked in a village shop for 16 years. Up until earlier this year she worked 30 hrs pw, then she reduced it to 25 hrs.pw.
She has just had a disciplinary hearing where she has received a final written warning ( which she is ok with) however, her hours have been reduced to 6pw ,supposedly in accordance with a Contract of Employment, which she has never seen. On being given a copy of the contract it is a Generic copy. It is dated July 2013 and is in the name of the previous owner of the business. It does not have her name on it and it is not signed by either party. Is the contract legal, as she wants to dispute the reduction in her weekly hours.
Submitted: 1 year ago.
Category: Law
Expert:  Ben Jones replied 1 year ago.

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?

Customer: replied 1 year ago.
The said contract states 6 hours per week and extra hours may be offered.
The current owner of the business has owned it for approximately 2 years.
Expert:  Ben Jones replied 1 year ago.

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

Ben Jones and other Law Specialists are ready to help you
Expert:  Ben Jones replied 1 year ago.

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.

Customer: replied 1 year ago.
She has delivered a letter to his other store today stating that she agrees to the terms of the Written Warning but does not agree with the change of hours and has asked for her 25 hours to be reinstated with immediate effect.
Expert:  Ben Jones replied 1 year ago.

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

Customer: replied 1 year ago.
Since working under the new ownership my sister has had her shift pattern changed about 10 times but the hours have always remained the same. I would say that this constitutes her hours as contractual.
Expert:  Ben Jones replied 1 year ago.

in terms of number of hours I would agree yes

Customer: replied 1 year ago.
She has not had a payslip since July 29th,would she need these as proof of payment or will a bank statement be sufficient.
Expert:  Ben Jones replied 1 year ago.

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

Customer: replied 1 year ago.
She has payslips that go back to when the new owner took over.
Customer: replied 1 year ago.
Would these be classed as evidence
Expert:  Ben Jones replied 1 year ago.

yes certainly they can amount to evidence which she can use if needed

Customer: replied 1 year ago.
How long should my sister wait for a reply,to the letter she delivered on October 5th,before she looks into further action.
Expert:  Ben Jones replied 1 year ago.

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

Customer: replied 1 year ago.
Wanted to update you. The letter that was sent on 5th was not responded to, so hand delivered another today stating that she wanted to sort this amicably, as he may be in breach of contract, but if necessary would go down the legal route.
He has responded by re-instating her hours and she will be paid for the lost hours over the last 2 weeks.
So I would like to thank you so much for your help as we have the result we wanted.
Expert:  Ben Jones replied 1 year ago.

Great news, thanks for the update and all the best