Custom and practice, and employment contract terms (implied and express terms)

We know there are a lot of employees out there at the moment who are having their employment terms changed, usually against their wishes. We thought we’d look at this in more detail here, specifically focusing on what ‘custom and practice’ means and how and when a ‘custom and practice’ might be come part (a term) of your contract of employment. 

Including, Implied terms

These are not written down anywhere, but are understood to exist because of the conduct of the parties. They are usually fairly obvious to both parties to the contract without ever being recorded in writing. If there’s nothing clearly agreed between you and your employer about a particular matter, then it may be covered by an implied term. Terms are implied into a contract:

  • In order to make the contract work – the most important of these is the ‘duty of mutual trust and confidence’. This means that you and your employer rely on each other to be honest and respectful. If the employer fundamentally breaches that trust and confidence, an employee may be justified in treating his or her contract as having been unlawfully breached.
  • Because they are obvious or assumed – so it is not felt necessary to write them down, or because it will be assumed that such a term exists.
  • By custom and practice – these are specific to an employer or type of trade/industry. They are arrangements that have never been clearly agreed but over time have become part of the contract. For example, you might get a Christmas bonus every year, or the business might close early on particular days, although this is not written down. If a company practice or management policy has become a part of your contract then your employer must stick to it, and cannot normally change it without your agreement (consultation).

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