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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
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, Iam asking a question on behalf of my daughter in law,

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Hello, Iam asking a question on behalf of my daughter in law, she has worked for a national hotel chain for over 15 years on a part time basis. Her original contract was for every Sunday. About 4 years ago by mutual agreement her hours were reduced to alternate Sundays, no new contract of employment was issued.
This situation worked well until a new manager was appointed recently when he asked her to come to a meeting out of her normal hours, she went and was told verbally that she was not working her contracted hours and that she either had to work every Sunday or go onto a zero hours contract, this would mean she would loose some of the benefits eg use of the Gym etc.
She does not want to work every Sunday and is happy with the current arrangement. She then asked for her options and reasons for the change in writing, a member of HR was at the meeting taking notes. Instead she has been summoned to another meeting, again on a day she does not work and the reason given is
" This time in the meeting we will go through the purpose of the changes that are needed to the hours that you are doing right now".
My question is -
can the manager force her to change her hours after so long?
can they force her onto a zero hour contract.
Thanks Ray Barber
Ben Jones :

Hello, my name is ***** ***** it is my pleasure to assist you with your question today.

Ben Jones :

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

She may tell the employer that she believes the term or practice she is 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 she can only realistically challenge this through the following ways:

1. Start working on the new terms but making it clear in writing that she is working ‘under protest’. This means that she does not agree with the changes but feels forced to do so. In the meantime she should try and resolve the issue either by informal discussions or by raising a formal grievance.

2. If the changes fundamentally impact the contract, for example changes to pay, duties, place of work, etc., she may wish to consider resigning and claiming constructive dismissal. The resignation must be done without unreasonable delay so as not to give the impression that the changes had been accepted. The claim must be submitted in an employment tribunal within 3 months of resigning and is subject to having at least 2 years' continuous service. She would then seek compensation for loss of earnings resulting from the employer's actions.

3. If the employment is terminated and the employer offers re-engagement on the new terms that could potentially amount to unfair dismissal. However, the employer can try and justify the dismissal and the changes if they had a sound business reason for doing so. This could be pressing business needs requiring drastic changes for the company to survive. If no such reason exists, she can make a claim for unfair dismissal in an employment tribunal. The same time limit of 3 months to claim and the requirement to have 2 years' continuous would apply, but as mentioned it can only happen if the employer tries to force the changes through by dismiss her and terminating her current contract.

Ben Jones :

I hope this clarifies your position? If you could please quickly let me know that would be great, as it is important for us to keep track of customer satisfaction. Thank you

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