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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 70353
Experience:  Qualified Solicitor
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For the last 6 years I have had 30 days leave all signed off

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Hi for the last 6 years I have had 30 days leave all signed off and approved, they are now saying I'm only entitled to 25 days, I was given an extra week for long time service after 10 years, this was all talked about when I TUPE over to my new company 7 years ago with HR and my manager I asked this to be put into my T&Cs but this never happened, the manager has since left so cant confirm this, where do I stand with this and would the 30 days be part of my contact now anyway as ive had them for the last 6 years??
JA: Have you discussed the TUPE issue with a manager or HR? Or with a lawyer?
Customer: My new manager is the one who has brought this up saying I'm only entitled to 25 days I have not spoken to a lawyer yet,
JA: What is your employment status? Are you an employee, freelancer, consultant or contractor? Do you belong to a union?
Customer: I am employed and no union,
JA: Anything else you want the Lawyer to know before I connect you?
Customer: No i think that is it,

Hello, I’m Ben, a UK lawyer and will be dealing with your case today. Firstly, I need to ask some initial questions to determine the legal position.

Did you receive a revised contracted when you were TUPE'd over?

Customer: replied 10 months ago.
Hi Ben, yes I did but there was no mention of the extra holiday

What does it say about holiday?

Customer: replied 10 months ago.
It say i get 25 days

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.

Can I just check how many days per week you work?

Customer: replied 10 months ago.
I work 5days plus 2/3 weekends a month.

Thank you. Under law, you would be entitled to a minimum of 28 days of holidays a year. So if they take your total allowance to 25, then they would be acting unlawfully anyway. However, if that does not include bank holidays then it would be ok as bank holidays all count towards the total. So you can challenge them on that basis to start with.

Secondly, you could argue that the 30 day allowance has become an implied term through custom and practice.

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

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?

Hello, I see you have read my response to your query. Could you please let me know if it has answered your original question? You can simply reply on here with a quick ‘Yes, thanks’ and I won’t bother you again. Thank you

Customer: replied 10 months ago.
thank you

All the best

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