Custom and practice

09 July 2019

Businesses introduce rules and regulations to guarantee safety and structure for staff members.

They’re normally outlined in employment contracts and policies – ensuring both legal and moral protection.

But when it comes to unwritten customs and practices, your obligations differ slightly. Employers must be aware of what their legal responsibilities are when it comes to implied practices.

The consequences range from instigating workplace discrimination to serious injuries. All of which can lead to heavy financial penalties and damage to your business name.

Read all the rules on customs and practices; what your legal responsibilities are for your staff; and how to keep your policies risk-free.

What is a custom and practice in the workplace?

Custom and practice at work refers to any unofficial tradition or rule that becomes part of a business culture. These are implied or unwritten rules that everyone follows – even if they aren’t legally documented.

Here are examples of terms implied by custom and practice:

Workplace customs and practices can also be known as implied or express terms. (See below).

What is the difference between an implied term and an express term?

When an employer decides to hire someone, they generally provide their rights and duties through employee contracts.

Some contract terms class as express terms – which are confirmed out loud or through writing. Examples of this include discussing work hours or wages in an interview.

Other customs and practices, in employment law, are defined as implied terms. They’re generally obvious to both parties; and include legal duties like, equal pay rights or duty of care.

Once of the most significant implied terms is duty of mutual trust and confidence, which must be included in every employment contract.

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When does custom and practice become contractual?

Your business might have a handful of established customs and practices already in place. If so, they could become part of contractual terms.

According to ACAS, customs and practices can become part of an employment contract if:

  • The term is generally well-known in the business.
  • The term is considered reasonable.
  • The term is certain.

Is custom and practice legally binding?

For a custom or practice to be legally binding, it must be fully transparent and have been established over a reasonable amount of time.

It must subjectively look like everyone follows these rules, as if they were legally obligated to.

What are the consequences of customs and practices?

Employers could face trouble when customs and practice are considered implied terms. When you have long-standing practices, sometimes they might be considered as ‘informal’ contractual terms.

A contractual term can only be changed or introduced after agreement from both parties. If this isn’t communicated, it could be considered as a contractual breach.

You have a legal duty to act reasonably when it comes to your employees. Failing this, you could face workplace discrimination and serious accidents. And if employees raise claims, you might have to attend court hearings or pay compensation fees.

However, employers can amend contractual terms if it’s for ‘business reasons’. It will class as a breach. But judges will acknowledge that they acted for justifiable reasons. Employers should always seek legal advice before making any sort of contractual changes.

What is the effect of TUPE on custom and practice?

The Transfer of Undertakings (Protection of Employment) Regulations 2006 (or TUPE) safeguards staff rights if their employer decides to sell the business.

TUPE legally ensures that the new business owner cannot change or ignore employee rights. For example, the new employer is obliged to continue redundancy payments, even if it’s not a written rule.

Any employees transferred under TUPE, are still entitled to their legal rights. And this is still a legal obligation for the new employer.

How to apply custom and practice in the workplace?

There are several ways to apply workplace customs and practices without causing legal breaches and penalties.

Your main goal is to ensure your rules don’t translate as implied terms – especially when contracts are concerned.

If you think a custom or practice should be included into a contract, you need to present it as a contractual term or policy rule from the beginning.

Here are steps to consider when applying customs and practices in the workplace:

  • Clearly outline discretionary benefits as non-contractual.
  • Avoid adding informal benefits to employee contracts , policies, and handbooks.
  • Ensure all written or verbal communication follow appropriate methods.
  • Review any temporary practices within a reasonable timeframe.
  • Present a grievance policy for any disagreements.
  • Follow a thorough procedure for employees being transferred under TUPE.

It might be difficult to define whether your custom or practice counts as an implied term or not. However, this shouldn’t stop you from presenting your staff with discretionary awards or bonuses.

Provide credit where it’s due – this will ensure staff are respected and valued. And a happier workforce is guaranteed to lead onto business success.

Get expert guidance on customs and practices with Peninsula

Making sure everyone is aware of legal regulations and rights at work can be tricky to manage. However, if you fail to make a clear distinction, you could face more than a few broken rules.

Employees could face serious accidents or workplace prejudice through your business procedures. Meaning your business could risk paying expensive legal fees and compensation penalties.

Peninsula offers expert guidance on workplace customs and practices. Our clients get access to 24-hour HR advice helping them manage regulations – through legal and moral means.

Get in touch today; or use our callback form to arrange for us to get in touch at a time that is convenient for you. Call us on 0800 028 2420

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