Custom and practice refers to any unofficial aspect of company, trade or industry culture that has become the ‘norm’. These are the implied terms and unwritten rules of employment that are not explicitly referred to in an employment contract or formal policy documents. In order for something to be deemed as a custom and practice it has to be a long-standing occurrence that is continuously applied, acknowledged and expected by all. For example, it may have become custom and practice for an employer to pay a Christmas bonus to their employees. In many cases, this will not be a contractual entitlement; however, it may be that Christmas bonuses have been awarded for a number of successive years that they are now expected by employees. Other common customs and practices include:
- Overtime policy
- Flexible working policy
- Closing early on Fridays
- Alcohol during working hours
Potential risk for employersEmployers must be aware that, left unchecked, long-standing customs and practices may automatically become part of an employee’s working terms and contract, even if this was never the employer’s intention. In this case, if the employer suddenly revokes an established practice without just cause, or they have not made any formal provision to explain or clarify their position, employees may claim that the practice is now an implied term of employment and cannot be removed without their consent. There is no defined time period as to when a certain behaviour becomes a workplace custom – if any issues arise, the reasonable nature of the claim is usually determined by an employment tribunal.
Custom and Practice: The Acas approachAs the nature of custom and practice in the workplace presents a distinct grey area for many employers, it's worth reading into the best practice guidelines offered by Acas to ensure that both implied terms and explicit agreements are fully understood. It's not uncommon to find a wide range of implied employment terms that may have become established over time in any given organisation. However, it's not always absolutely obvious when a regular custom becomes an implied term. By gaining a better understanding of these situations, employers can safeguard themselves in the event of an employment tribunal. If you are looking for further employment law advice to suit the specific needs of your business, we recommend getting in touch with our team of HR experts as soon as possible.
The law behind customs and practicesThere is no clear legislation on customs and practices because, by their nature, they are the implied terms that are not governed by formal, written procedure. In the event of a tribunal, each custom will be investigated on the grounds that it is well-established, continuously applied and followed by all employees within an organisation.
- Although long-standing customs and practices are not officially documented, they still form part of the employment contract as an implied term.
- Employers must be aware of the risk involved when deciding to remove any established customs and practices, and the impact that it will have on their staff.
- If an issue arises and is not resolved between the employer and employee, the employee may wish to present their case to a tribunal.