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Ben Jones
Ben Jones, UK Lawyer
Category: Law
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Experience:  Qualified Solicitor
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Can a non-contractual disciplinary procedure become

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Can a non-contractual disciplinary procedure become contractual under custom and practice rules if it is used consistently by the employer over a number of years, is known by employees to be regular standard practice and is expected to be applied during employment?
JA: Was the disciplinary action discussed with a manager or HR? Or with a lawyer?
Customer: No disciplinary action was discussed at all.
JA: Does the workplace operate with employees, freelancers, consultants, contractors or with unionised employees?
Customer: Employees
JA: Anything else you want the Lawyer to know before I connect you?
Customer: The reason for the question is to determine if there was a wrongful dismissal due to breach of contract when an employer dismissed an employee without following any sort of dismissal procedure.

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

How long had the employee worked there for?

Customer: replied 13 days ago.
1 year and 11months

Thank you. It is indeed possible for such a policy to have potentially become legally binding but it will depend on whether the relevant factors apply.

 

I see you have already mentioned some of them but I will cover the formal position in full anyway just so you have the exact picture. 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

{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

 

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?

Customer: replied 13 days ago.
It does, thank you very much for your advice. It is greatly appreciated.

All the best

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