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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 51172
Experience:  Qualified Employment Solicitor
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I have been working without a written contract of employment

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I have been working without a written contract of employment for 9 years, and when recruited insisted that I be granted 25 days annual leave per year, the norm for the majority of employees being only 20 days, but I have without any problem been taking 25 days leave since day one. However there is a standard benefit (for all) that grants an additional 2 days annual leave after 5 years service, I only became aware of this additional benefit recently, and have requested that I be granted these additional days in this entitlement year a future years. My employees initial response has been that having had the benefit of 25 days for 9 years they don't feel they can grant me any more.
Am I right to insist that these additional 2 days annual leave be given?
Many thanks
Diane

Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today.

So why were you granted the 25 days annual leave to begin with?

Customer: replied 5 months ago.
I was poached from a competitor and insisted that I be granted 25 days leave, or I wouldn't be joining the company.
Customer: replied 5 months ago.
probably obvious but dialling from the uk just dial a 0 before the(###) ###-####
Customer: replied 5 months ago.
ok so what is the response to my problem?

OK, thank you for your response. Leave it with me for now and I will review the relevant information and laws and get back to you at the earliest opportunity. There is no need to wait here as you will receive an email when I have responded. Also, please do not respond to this message as it will just push your question to the back of the queue and you may experience unnecessary delays. Thank you.

Many thanks for your patience. Regardless of how many days you were already getting, you should be able to rely on this policy and clam that you would also be covered by it. This would be the case, as long as it did not have any specific conditions disqualifying you, such as it not applying to anyone already getting X number of days’ holiday, or it applying only to give an employee up to a maximum of X days a year. If it was an open policy, applicable to everyone, you should not be treated differently to others, simply because you had already started with a higher number of holidays.

What you can rely on is that there is a principle in law known as ‘custom and practice’, under which certain terms may become implied into an employment contract. 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 tribunals 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 in any negotiations.

From a legal perspective, to become an implied term a practice must be "reasonable, notorious and certain". In simpler terms this means it must be well established over a period of time, known to employees and clear and unambiguous. So it would need to have been clearly communicated to staff so that they have a degree of expectation for it and then it must have been consistently applied for a substantial period of time. Therefore, something that is uncertain, not widely communicated or 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 into 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

Whilst the argument of custom and practice can be raised with the employer in negotiations, they could of course refuse to accept it and if that is the case it can only realistically be challenged by taking this to an employment tribunal. Before that option is pursued it may also be worth raising a formal grievance to give the employer one last chance to resolve this internally.

I trust this has answered your query. Please take a second to leave a positive rating by selecting 3, 4 or 5 stars above - this is an important part of our process and recognises the time I have spent assisting you. If you still need me to clarify anything else, please reply on here and I will assist as best as I can. Thank you

Ben Jones and 2 other Employment Law Specialists are ready to help you
Customer: replied 5 months ago.
Ben
Thank you for the response I will digest the contents, and await a formal response from my employer, if it becomes fruitless even using the arguments you have presented me, a I will come back to you with perhaps a further question(s), but hopefully it will be satisfactorily resolved.RegardsDiane

No problem, I am here if needed