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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 50138
Experience:  Qualified Employment Solicitor
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I am a UK national who is employed by a UK company Serco onboard

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I am a UK national who is employed by a UK company Serco onboard a Uk registered ship as a deck officer. I am contracted as 3rd officer but in reality I have been acting as 2nd offier and signed on to the vessel as 2nd officer for over 2 years, I have never actually worked as 3rd officer. during this time I have completed all tasks associated to the 2nd officer position and have been appraised by senior officers twice both times receiving excellent appraisals. Recently the company decided to internally advertise the position I had been doing for over 2 years without informing me, I had to apply and do an interview.
The interview was a pharce which lasted less than 10 mins by phone. The next day I was told by phone by a young girl from HR that I had not been successful because I did not have enough experience and that I would subsequently be demoted to 3rd officer.
In the terms of my contract it states that any person working in a higher rank will automatically received the upgrade in wages, this has not been the case for me and it also states that in the event of a promotion opportunity length of service, experience, and appraisals will all be taken into consideration.
I would like to know where I stand and if I have any rights in this situation?
Hello, my name is ***** ***** it is my pleasure to assist you with your question today. When exactly did you start working for this employer?
Customer: replied 2 years ago.

My initial employment started with them when they took over the contract to run the service, it is a government funded ferry service to the northern isles, my contract was tuped across from previous employer. I was subsequently promoted 2 years ago this month.

Even though your contract does not state you were employed as a 3rd officer, 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 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, although you are free to raise a grievance with the employer first to try and deal with this internally. If you were to go to tribunal then the only way to do so would be by claiming constructive dismissal. This is where you argue that your employer’s unreasonable behaviour has forced you to resign and you leave your employment making the claim. If you are going down that route it must be done without unreasonable delay because the longer you leave it the more it may become likely that you have accepted the current position and your position will become weaker.
I hope this has answered your query. Please take a second to leave a positive rating, or if you need me to clarify anything before you go - please get back to me and I will assist further as best as I can. Thank you
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