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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 50477
Experience:  Qualified Employment Solicitor
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I am on a 0 hour contract and have worked full time hours (between

Customer Question

I am on a 0 hour contract and have worked full time hours (between 30 and 60 a week) for the last 2.5 years, mainly on waking nights. In September of 2013 we were tupeed over to another company who brought into effect sleeping nights (hours were 10pm to 8am, being paid normal hourly rate from 10pm-12 sleeping between 12 and 6am, on an on call basis and being paid normal rate from 6am to 8am). I am in dispute with the employer at the moment on a number of issues: They say that I do not accrue holiday pay for the "sleeping time", they are not doing anything unlawful by not paying minimum wage for the "sleeping time". Consequently I requested to take myself off sleeping nights. They are now only giving me an average of between 12 and 21 hours per week. Is there such a thing as an "implied contract" that would cover this?
Submitted: 3 years ago.
Category: Employment Law
Expert:  Ben Jones replied 3 years ago.
Ben Jones :

Hello, my name is ***** ***** it is my pleasure to assist you with your question today. can you tell me did you sign anything agreeing to the changes for the sleeping nights and when was this introduced please.

JACUSTOMER-rpm2sb1r- :

Hi, No, I have never had anything in writing as the previous company did not operate "sleeping nights" and I have repeatedly asked the new company for "Policies and Procedures" for sleeping nights and was told last Friday they don't have any and are not lawfully required to do so.

Ben Jones :

OK thank you, ***** ***** it with me. I am in a tribunal today so will prepare my advice during the day and get back to you this evening. There is no need to wait and you will receive an email when I have responded. Thank you

JACUSTOMER-rpm2sb1r- :

Thank you.

Ben Jones :

Apologies for the slight delay, I experienced some temporary connection issues earlier on. All seems to be resolved now so I can continue with my advice.

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

The issue in your case may be that you did not have a fixed number of hours and you hours frequently carried between 30 and 60 – that is quite a difference. Had they been fixed to, let’s say 50 hours a week, without any large variations then your argument would have been stronger but large fluctuations in hours would weaken your case.

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 see what they say. They could of course deny that and refuse to discuss the matter and if that is the case then you can only realistically challenge this by taking your case to an employment tribunal. This can only really happen if you resign and then make a claim for constructive dismissal.

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

Ben Jones :

Hello, I see you have accessed and read my answer to your query. Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this? I just need to know whether to close the question or not? Thanks

Ben Jones :

Hello can you please get back to me, thanks