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Ben Jones
Ben Jones, UK Lawyer
Category: UK Employment Law
Satisfied Customers: 47404
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I have been working employer 4 years. I am contracted 20

Customer Question

JA: Hello. What seems to be the problem?
Customer: I have been working for my employer for over 4 years. I am contracted 20 hours a week. but for the past 9-12+ i have worked an average of 39 hours a week (19 hours of regular overtime each week approximately), even during times where all overtime was cut, they ensured that I was still working the regular 39 hours as opposed to my 20 hours. Is there a way to legally enforce this as my contracted hours as I have worked these hours for so long?
JA: Got it. The Employment Lawyer will know how to help you. Have you consulted a lawyer yet?
Customer: no. I am just researching at the moment
JA: Is there anything else the Employment Lawyer should be aware of?
Customer: Last month my Manager at the time told me that come this month (March 2016) he will make these regular hours part of my contract. However due to health reasons, he and a manager of another store in the region swapped and as such he has been unable to fulfill the promise as he no longer works here. It doesn't feel as if the new store manager will fulfill the former manager's end of the deal by contracting me the 39 hours a week
JA: I'm sending you to a secure page on JustAnswer so you can place the $5 fully refundable deposit now. While you're filling out that form, I'll tell the Employment Lawyer about your situation and connect you two.
Submitted: 1 year ago.
Category: UK Employment Law
Expert:  Ben Jones replied 1 year ago.

Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today. Do you mean you have worked them for 9-12 months?

Customer: replied 1 year ago.
No I have worked for them for over for years. The past 9-12+ months I have worked an average of 39 hours a week rather than my contracted 20 hours. The shifts have remained consistent.
Expert:  Ben Jones replied 1 year ago.

The only way to try and make the employer change your contract and make the 39 hours permanent is to rely on the law of custom and practice.

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. 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.

You have to be mindful that just because you have done these hours for around a year does not necessarily make it long enough. A court may decide that it needs to be longer, a few years for example. Saying that if certain principles are met they could still qualify a practice which has only been around for a year.

This is your basic legal position. I have more detailed advice for you in terms of the factors established by case law which you may use to argue your case, 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 I no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you

Expert:  Ben Jones replied 1 year ago.

Hello, I see you have read my response to your query. Please let me know if this has answered your original question and if you need me to discuss the next steps in more detail In the meantime please take a second to leave a positive rating by selecting 3, 4 or 5 starts from the top of the page. The question will not close and I can continue with my advice as discussed. Thank you

Expert:  Ben Jones replied 1 year ago.

Hello, do you need any further assistance or are you happy with the above response? Look forward to hearing from you.