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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 44942
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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71 years of age, motel worked 5 nights a week regular for 5

Customer Question

71 years of age, motel worked 5 nights a week regular for 5 years, promised 5 days a week by previous site director for help given on takeover, currently on 24 hour contract, is there over ridding implied contract after 5 years? due to hour cuts management now proposing to give one or 2 of my shifts to newish employee, can they do this or am i entitled to retain my existing work patern
Submitted: 2 months ago.
Category: Law
Expert:  Ben Jones replied 2 months ago.

Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today. So has the motel been taken over by a new employer?

Customer: replied 2 months ago.
started employment on take over 5 years ago by roadchef
Expert:  Ben Jones replied 2 months ago.

Ok thanks I will reply this evening as I am travelling right now

Expert:  Ben Jones replied 2 months ago.

Many thanks for your patience. 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 as such changing it now would amount to a change of your contract.

This is your basic legal position. I have more detailed advice for you in terms of the rights you have on change of contractual terms, 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

Expert:  Ben Jones replied 1 month ago.

Hello, I see you have read my response to your query. Please let me know if this has answered your original question and if you need me to discuss the next steps in more detail? In the meantime please take a second to leave a positive rating by selecting 3, 4 or 5 starts from the top of the page. The question will not close and I can continue with my advice as discussed. Thank you

Expert:  Ben Jones replied 1 month ago.

Hello, do you need any further assistance or are you happy with the above response? Look forward to hearing from you.

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