How JustAnswer Works:
  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site. Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.
Ask Ben Jones Your Own Question
Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 50154
Experience:  Qualified Employment Solicitor
Type Your Employment Law Question Here...
Ben Jones is online now

I agreed to replace my manager who was going on secondment,

This answer was rated:

I agreed to replace my manager who was going on secondment, and was told it would be for 6 months. However I was told that to keep it simple it was not to be an official secondment and no contractual changes were agreed. Now 15 months later I have been doing a team management role, taking on full responsibilities including recruitment and to a satisfactory level. My previous manager was in a secondment for 12 months and has been in a new substantive role for 3 months. Now the company want to recruit for the position I have been doing and I have been told that I am welcome to apply, but that they will be looking in the external job market also. As I have been doing a role different to my contracted role for 15 months do I have any legal rights that my contract should be changed to the role I have been undertaking or am I in from a legal standpoint still doing my previous role?
If someone else gets appointed into this role do I have any legal rights to sue for constructive dismissal or to claim back pay for doing a higher paid job for a lesser salary for 15 months.
Many thanks
Ben Jones : Hello, my name is ***** ***** it is my pleasure to assist you with your question today. How long have you worked for that employer?
Customer: Hi Ben, I have been employed by this company since January 2007.
Ben Jones :

Hi, sorry I was offline by the time you replied last night. The main issue in your situation is that it was specifically agreed that this was going to be a temporary change an even though it was initially agreed it would only last for 6 months, the fact it has continued for a further 9 would not necessarily give you permanent rights to it.

There is a principle in law known as custom and practice where if something has been consistently applied for a prolonged period of time and it is clear that these were the intentions of both parties, it could become an implied contractual term. However, I am not convinced you have the requisite factors to argue that – 15 months is not a long time in legal terms, the employer never formally indicated that they had intended for you to be in that role permanently and the delays were due to other reasons which meant the person who originally did it could not return on time and in general there was no indication that this was ever going to be permanent. So this argument, whilst something you can raise with the employer, is not going to be that strong.

In terms of being paid more for the work you did, again this is not going to be easy. It was never agreed that you were going to receive any higher pay whilst working in that job. You never challenged the fact you were not being paid more and it would lead to an implied acceptance on your part that you were happy with what you were getting paid throughout this time.

Finally, in terms of constructive dismissal, you must demonstrate a fundamental breach of contract on the employer’s part, but if you cannot easily show that you had gained permanent contractual rights to that position, then such a claim could be quite risky. It does not mean you cannot resign and try pursuing it, but I certainly cannot say that you have a strong enough case to say you should definitely consider it.

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

Customer: Thanks Ben
Ben Jones :

you are welcome

Ben Jones and other Employment Law Specialists are ready to help you