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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 59745
Experience:  Qualified Employment Solicitor
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I am contracted to work 16 hours per week but for the last

Customer Question

I am contracted to work 16 hours per week but for the last 14 months I have worked over 39 hours every week now my employer wants me only to work contracted hours is there anything I can do to stop this
JA: Have you discussed this with a manager or HR? Or with a lawyer?
Customer: No
JA: What is your employment status? Are you an employee, freelancer, consultant or contractor? Do you belong to a union?
Customer: Employee
JA: Anything else you want the lawyer to know before I connect you?
Customer: No
Submitted: 10 days ago.
Category: Employment Law
Expert:  Ben Jones replied 10 days ago.

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

Expert:  Ben Jones replied 10 days ago.

Why have you been working more than your contracted hours? Also, how long have you worked for your employer?

Customer: replied 10 days ago.
I have been told on different occasions that my contract would be changed to full time but this has never happened and now my employer wants me only to work contracted hours to enable them to employ more staff
Expert:  Ben Jones replied 10 days ago.

Thank you. I will get back to you with my answer as soon as I can, which will be at some point today. The system will notify you when this happens. Please do not reply in the meantime as this may unnecessarily delay my response. Many thanks.

Expert:  Ben Jones replied 10 days ago.

Many thanks for your patience. The starting point is that your main point of reference would be your contract, unless there was clear evidence that the employer had altered it permanently. If you were given extra hours but it was never communicated to you that this was the new permanent arrangement, the only way to try and argue that this had become the permanent arrangement is by relying on the following:

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:

{C}· 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

{C}· Whether the terms are always the same - large differences will make the argument they had become implied weaker

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.

Does this answer your query?

Expert:  Ben Jones replied 8 days ago.

My response to your query should be visible on this page. Could you please let me know if it has answered your original question or whether you need me to clarify anything else in relation to it? If your query has been answered I would be grateful if you could please take a second to confirm this by replying on here. Thank you

Expert:  Ben Jones replied 7 days ago.

Hello, not sure if you are having trouble seeing my posts? I have not heard back from you since posting my answer and just need to know if your query has been resolved. If you could please post a quick reply to confirm I would be very grateful. Thank you