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Ben Jones
Ben Jones, UK Lawyer
Category: UK Employment Law
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In my old employment contract it says you will be paid for

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In my old employment contract it says you will be paid for working 10am - 5.30pm at 32.5 hrs a week, 6.5 hours per day. It does not state anything about a lunch hour or getting paid for it or not. Should it be 37.5 hrs a week I get paid for.

My new contract times are in correct they state 9.00am - 5.30pm. I immediately rang head office and told them they had made a mistake. She apologised and said sorry she did it automatically because she was busy. She knows I have never worked full time. I said do you want me to change it to the correct time and send it back or do you want to send me a new contract, she said yes just change it and send it back. Now they are saying they were paying me for a full time salary because I was awarded a payrise back in 2009. can they do this.
Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. What claim did you make against them?
Customer: replied 3 years ago.
Unlawful deduction of wages
Are they claiming you have been overpaid and if so do they want you to repay this?
Customer: replied 3 years ago.
No they was going to try and reclaim it but I sent them the Keenan v Barclays case and after getting legal advice they instead invited me to repay. I refused. This has been going on for a one and a half years. That's why I took them to the tribunal
ok I a unclear as to what the current position is and what your specific question about this is - you say they do not want you to repay anything, and you have taken them to tribunal and this has been struck out, sop what would you like to achieve in this situation then?
Customer: replied 3 years ago.
Sorry Ben. My boss and the partners dissolved the Partnership company and opened a LLP company then we were sent new all signed new contracts to sign in 2010. My contract was for the salary that salary which included my pay rise total figure which I had been receiving for over a year and continued to be paid that figure for a first her two years under my new contractThere was no consultation process done.

Question: can my boss decide to take away the pay rise and claim it is a mistake.

Question: once a company is dissolved and a new contract is signed for the new company, can my boss say my old contract is what they are now going to pay me under. Even though they can not trade under the old company because and my contract for the last 3 years is for the new LLP company.

Hope this is clearer

OK thank you for clarifying. My concern is that you have already taken them to a tribunal and have been told you have no claim. I know you have pointed them to the case of Keenan, but this was decided in the employee's favour based on particular circumstances of that case and you will not necessarily match these here - each case depends on its own facts. Also this case is not binding - it is only a tribunal case and unless it was appealed to the Employment Appeals Tribunal with the same outcome, it would not be binding case law.

Nevertheless, there is a principle in employment law where terms may become implied into an employment contract by ‘custom and practice’. This makes them contractually binding even if they are not written down anywhere or have been paid in error. This area of law is rather complex and it is usually only down to the tribunals and courts to establish with certainty if something has 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 term(s) 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, has not been applied consistently or has just been around for a few months is unlikely to qualify.

Recent case law has suggested that the following are important factors when considering whether a benefit has become implied in a contract:
• On how many occasions, and over how long a period, the benefits in question have been paid - the more times they have been paid and the longer the period over which this has occurred, the stronger the argument they had become implied
• Whether the benefits are always the same - large differences in the amounts paid will make the argument weaker
• The extent to which the enhanced benefits are publicised generally - there must be widespread knowledge and understanding amongst the workforce that such benefits were being paid
• Were the benefits always described as being discretionary or 'ex gratia' - the use of these terms will not help an argument of a benefit becoming implied
• Were the implied terms consistent with the express terms of the contract - the written terms would normally prevail

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 or the county court. However, if you have already claimed and had your claim rejected, then you cannot claim again for the same thing and would have to consider letting the matter go.

I hope this has answered your query. Please take a second to leave a positive rating, or if you are unhappy for some reason with the advice - please get back to me and I will assist further as best as I can. Thank you very much
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