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Ben Jones
Ben Jones, UK Lawyer
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I work in a small team in administration at a University. I

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I work in a small team in administration at a University. I am not a union member because it is too expensive and now it is too late to join because they require you to be a member for 90 days before a problem occurs. My job was upgraded (3 to 4) and given a new job title (and new job description) in April 2015 to reflect what I was already doing. We have had various issues with ageing workers beyond retirement age slowing down and a manager (grade 6) working 60hrs/week to manage the workload which was ever increasing. We have been fighting for more hours for years and finally, after several crises we were granted an additional temporary staff member (grade 6, 0.7FTE) for 9 months to help at the top end from October. However, the manager (60hrs/week) died over Christmas unexpectedly and the office is now running on a shoe string. What was decided: the new grade 6 takes on most of the late manager's work; I am temporarily upgraded (5, but without a contract obviously) from January to take on full responsibility of 70% of my grade 4 job, plus part of my manager's in order to combine one previously divided area into one more logical unit. This made a full-time job. We then were given a bit of token help as well, but not enough. The manager who died has not been replaced because a reorganisation was in the early planning stages (to start this October). We didn't know about this until March. Now we are at the stage of being slotted into new jobs and I have been offered a Grade 4 Assistant job which is thought to be the most similar to the job I have a contract for, at least it's on the same level. 60-70% of my old job is gone elsewhere, and 60% of the new job is new. Fine so far. However, another new job at grade 5 has been created in the new structure which is divided into 70% of workload A (Jan-Sep) and 30% of workload B (Oct-Dec). Workload A is exactly what I am doing on a temporary basis at this moment which is my old grade 4 (contractual) workload + manager's workload in that area, so with more reponsibility, hence more money. In the old grade 4 job I have spent about 0.7FTE on this area, so the hours are the same averaged out over the year because of some new streamlining and support from below. Workload B in the new grade 5 job is something I have not done before and the person who did this previously is leaving, so there is no contender to that part of the job. There is nobody else in the building who would be qualified to be offered the grade 5 job, or even apply for it. I have a meeting next week to discuss the new job I am offered and wonder whether I would have half a leg to stand on to see whether I could be slotted into the grade 5 job without having to apply for it. The answer I expect is that I have no contract for grade 5 and therefore can't be slotted into a grade 5, but by the time the new structure starts I will have done exactly that job for 9 months, on grade 5. My questions at the meeting would be: will I be paid grade 5 money until the new structure is in place (this always gets extended for 3 months at a time and runs out in July for now); what are the criteria for slotting, is it same level + closest to old job? My main arguments would be: our office has already been working in the new structure for 9 months, and me on the same pay, with workload A given to one person, ie me (divided in two previously); the job I have been offered is on the same pay level, but very different from the old grade 4 - if the criteria for slotting is to find the job that is closest to your previous (contractual) job, then it should be the grade 5, as it is the same as old job, just a bit more reponsibility, and absolutely the same as current interim job, plus 30% of something else (it might be important to add that the 70% part of the job is sole responsibility for the area, with support from below, whereas the 30% part is a support role with responsibility taken at the top). Obviously, the simple answer is that I can apply for the grade 5 job. But I still want to try and make my point. My question to you: what is the legal situation here, because of the interim arrangement on the higher pay, but without a contract? It is not a straightforward situation. Thank you

Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today.

Customer: replied 1 year ago.
Hi Ben, thanks for your time

Hi there. How long have you worked there for please?

Customer: replied 1 year ago.
8.5 years

OK, thank you for your response. I will review the relevant information and laws and will get back to you as soon as I can. 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. In the circumstances there is unfortunately no straightforward answer as there are no specific laws dealing with this situation. It is a mixture of different factors and practices but the process of slotting people into other jobs is really an internal matter governed by internal policies. The law only looks at what is generally fair and reasonable rather than the exact specifics.

I think in the circumstances the best argument would be that of custom and practice to say that you have worked in the job for long enough that it has become your implied position. Not always an easy argument but nevertheless one that you are free to raise.

This principle makes implied terms 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.

This is your basic legal position. I have more detailed advice for you in terms of what case law has determined as important factors to support such an argument, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, there is no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you

Ben Jones and other Law Specialists are ready to help you

Thank you. Case law has suggested that the following are important factors when considering whether a term has become implied in 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

{C}· 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.