April 2, 2019

What is 'Custom & Practice'?

Not all of the terms and rules of employment are formalised and cemented through employment contracts.

For these unofficial factors, the term custom and practice is used to describe anything that becomes a norm within companies or industries.

Employment contracts and formal policy documents cover the majority of the rules of employment.

However, the term custom and practice includes unofficial and implied norms, specifically referring to those that has become a recurring practice or factor, that is broadly known and expected, as well as consistently recognised and applied.

Custom and practice includes factors that are commonly considered outside of contractual entitlements.

For instance, early closing times on Friday might have become custom and practice for several years to the point that it’s regularly expected by employees.

When something becomes custom and practice, it can become an issue of contention when it is revoked or changed without consent or justification.

Examples Of Custom And Practice

As the term custom and practice is open in its definition, there are a variety of norms that can fit into the category, including those that are applicable to both the employer and the employee.

Some examples include:

  • How overtime is handled;
  • Flexible and remote working arrangements;
  • Early closing or opening hours on specific days of the week;
  • Adding extra days of paid leave on Bank Holidays.

About The Formation And Revocation Of Customs And Practices

Over time, the recurring norms of the business can become part of the working terms and employment contract between employee and employer.

Even if unintentionally, these norms can have legitimate legal weight behind them.

For instance, if it’s a custom and practice that employees are regularly allowed to work remotely from home using their own digital equipment and internet connection, then revoking it without justification or a formal clarification can lead to contention.

Employees can, in this case, argue that remote working is now an implied part of their employment contract and may not be removed with consulting them.

Whether or not a norm within the workplace becomes custom and practice isn’t determined by any set period of time.

If an employer and employee are unable to resolve the issue alone, then the outcome of a custom and practice claim is handled by an employment tribunal.

The Legality Of Custom And Practice

No single legislation offers clear terms on custom and practice, due to the fact that they are informal and implied by their nature.

As such, employment tribunals investigate every case on how well-established, consistent, and understood a norm is by the employees of a business.

Resolving Custom And Practice In The Workplace

Whether or not a recurring norm in the workplace becomes an implied term of the employment contract can be hard to define.

As such, it’s recommended that employers understand custom and practice, formalising what they can in writing and addressing norms that risk becoming a point of contention.

Neathouse Partners is a team of HR and employment law specialists that can help employers, business owners, and directors understand custom and practice, amongst other things.

Get in touch and we can help you safeguard your business against employment tribunals.

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About the author 

James Rowland

James is the Commercial Director at Neathouse Partners and regularly writes articles surrounding issues in HR & Employment Law. Outside of the office, James is a keen Cricketer, playing in the Cheshire League for Nantwich CC. He also loves going to watch his football team, Crewe Alexandra. Feel free to connect with James on LinkedIn.

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