Temporary "Acting up" agreement expired

[jamie135]

Hi!

In July 2013 I was asked to "act up" as the manager of a new team (6-8 staff plus one supervisor) in exchange for a 15% salary enhancement. the original agreement was for three months or so. The agreement was extended a few times and eventually expired on April 30th 2015, although after the agreement expired I have continued to manage the team and my employer has continued to pay me the agreed 15% salary enhancement.

In September 2015 the supervisor of the team gave her notice, I met with my manager soon after and they explained that they wanted to replace her supervisory level position with a management position. It was explained that because of the companies structure the new manager would have to report into her directly and that my involvement would no longer be appropriate. She told me that my salary may not be affected too much and that we would meet again to discuss.

On December 10th I received a letter from our HR Manager that said as per a recent discussion and agreement with my manager I was no longer managing the other team and that my salary was being reduced by over £3,000). The letter was dated December 5th and stated that the new terms were to take affect from December 1st. I was asked to sign the letter, agreeing to the change and return it to HR. Needless to say I did not do this, instead I wrote back and queried the new salary, stating that no such discussion had taken place and no agreement ha been reached. I also objected to being notified 10 days after the change was implemented without my consent and only 9 days before our pay day, leaving me very little time to plan for such a dramatic drop in income.

I'm waiting for them to get back to me but am not sure where I stand. Because the most recent formal agreement expired on April 30, 8 months ago and I continued to manage the team and they continued to pay me, does customary practice apply, making the temporary arrangement permanent? Can they just change my salary without any decent notice?

I don't know what to do!
Thanks for reading, I hope you can help!

[teaboy2]

Re: Temporary "Acting up" agreement expired

Since the role has ended on April 30th 2014 (i assume you did not travel back from the future when you stated 2015, not once but twice lol) with no futher extension, and you have since that time still been carrying out the role and duties involved?! If so then your fixed term contract that ended on April 30th is now a full time contract of employment with no fix term, and you have inherited the role and duties by customary practice, since after aprile 30th no extension was agreed, meaning no agreement as to when your contracted ceased. As their was no agreement as to when you contract would cease, then it is no longer a fixed term contract. But in fact and implied full time contract.

Difficult to get your head round i know. But basically you fixed term contract ended, your now as a result of carrying on the role without a replacement (or extension to the) contract on a implied contract (supported by customary practice) where the duration is infinite unless terminated, by resignation, redundancy or dismissal!

They therefore can not change your contractual terms or role as team manager without your consent, and they certainly can not reduce your salary.

However, their argument, should it go to tribunal would be that the position you filled was always temporary as per evidence by the previous fixed term contracts and subsequent extensions. And that argument is likely to be the key to any dispute. So forget about the position of team manager, that's not worth fighting for.

However losing 3K per year is a lot of money, and ideally they should be offering you a role with similar salary within the company. But they have a problem, as your now on a implied full time contract, they simply can not just terminate your employment (as stated above) if you refuse the pay cut. So only way they can get rid of you is redundancy but then they haven't followed redundancy procedure properly either. So only alternative is giving you another role withing the company on same pay!

Basically they have messed up, and likely forgot your fixed term contract ended in April and as a result of you carrying on the role as normal you now have a full time contract under implied contract of employment!

So for now sit back, go to work as usual, and await their reply to your letter. Once you have their reply come back here and let us know what they said, so we can help you further! Though you should have asked them for a copy of the contract from April 30th on wards? They won't find one as they won't have one clearly, hence why they can not terminate your contract on a whim now!

I do have one question though - If you were the manager of the team, then why would they need to replace the former supervisors role with managers role, when your already manager of the team? And not only that, why not offer it to you anyway?

[stevemLS]

Re: Temporary "Acting up" agreement expired

I have disagreed with teaboy before on this subject, but that is what you get on forums, different views.

However, custom and practice (rather than customary practice) can be argued, but not in my view in these circumstances.

There is a discussion of the types of things that this can be engaged here:

http://www.crunch.co.uk/small-busine...ontract-terms/

[teaboy2]

Re: Temporary "Acting up" agreement expired

Customary Practice (i.e. established) etc is only a de minimis issue here, it can apply to any aspect of employment, duties, hrs, holidays, bonuses, procedures you name it, if they have been established as standard duties or terms of contract. Not quite the same as Custom and Practice where they are implied duties, hrs, holidays, bonuses that have not been established in writing!

Its the lack of a contract since the last one terminated in April this year that is the main issue. And as the OP has continued the established role therefore a new contract with no fixed term has been entered into and the established role and duties the OP has been carrying out are terms of that contract, including pay.

[stevemLS]

Re: Temporary "Acting up" agreement expired

Well, we will have to agree to disagree.

[jamie135]

Re: Temporary "Acting up" agreement expired

Hi both,

thanks for the advice so far. Just to provide further context to see if it changes anything, I am a permanent employee and have been with my employer for 2 years and 11 months. While I was acting up, the duties of managing the team were in addition to my normal job which I also continued to carry out at the same time. Now that the new manager has been appointed I no longer act up and my employer is removing the acting up allowance and applying a slight increase to my salary from before the period began.

I do not wish to continue to act up as manager to the other team and just want to make sure that my employers are acting within the law reducing my salary given that it could now be customary practice and the changes to my salary and role were implied when the temporary agreement was extended without an end date.

I hope this make sense. Am I in a strong position to negotiate a better deal with my employer about the removal of the acting up allowance? If i hold my ground and refuse to accept the change in salary what will they likely do next? I do like my job and want to work here for a while longer without any hassle!!

If someone could also advise about how to word something to my employer that would be great!

Thanks Again!

[teaboy2]

Re: Temporary "Acting up" agreement expired

Hi both,

thanks for the advice so far. Just to provide further context to see if it changes anything, I am a permanent employee and have been with my employer for 2 years and 11 months. While I was acting up, the duties of managing the team were in addition to my normal job which I also continued to carry out at the same time. Now that the new manager has been appointed I no longer act up and my employer is removing the acting up allowance and applying a slight increase to my salary from before the period began.

I do not wish to continue to act up as manager to the other team and just want to make sure that my employers are acting within the law reducing my salary given that it could now be customary practice and the changes to my salary and role were implied when the temporary agreement was extended without an end date.

I hope this make sense. Am I in a strong position to negotiate a better deal with my employer about the removal of the acting up allowance? If i hold my ground and refuse to accept the change in salary what will they likely do next? I do like my job and want to work here for a while longer without any hassle!!

If someone could also advise about how to word something to my employer that would be great!

Thanks Again!

Well my view is that as you had carried on with the additional duties (established by fixed term contract and therefore customary and practice) as manager along with your original duties prior to being asked to fill in, and then still filling in after your fixed term contract ended (therefore still carrying out established duties via customary practice). Then the management role and duties involved are yours as a result of you continuing those duties after 30th April and by the employer allowing you to continue those duties as part of your original full time employment contract that you will have reverted back to when the fixed term contract ended. Plus the fact the employer also continued to adhere to your terms of contract under the fixed term contract after it had expired.

So they basically have given you the position by not extending the fixed term contract from April onwards, to cover the last 7 months, yet still expected you you to fill it and carried on paying you as per the terms of the fixed term contract, whilst you were back on your original full time contract. So in effect the duties were being carried out by you under your original contract of employment after April 30th so are implied terms of your original contract via custom and practice since you have been carrying them out under your permanent original contract since 1st of may, which is 7 months.

Not only that, as you have been filling the role for so long then they should have invited you to apply for the role full time, instead of bringing in someone from outside of the company. It would have made more sense to keep you in the management role and simply employed someone to take over your original role and duties instead. So did they invite you to apply for the role full time?

Personally i would write to them informing them that as you have been carrying out the role and duties under your original contract of employment since the fixed term contract ended on 30th april, then the role and duties are implied terms of your contract via custom and practice. Not only that, as you had been fulfilling the management role for so long they should have invited you to apply for the position full time, rather than demote you back to the original terms of your contract without your agreement! Inform them that by giving your role and duties that are now an implied terms of your original contract to another person, they are therefore in breach of your contract, and are in effect demoting you! Advise them it is unreasonable for them to demote you and force a pay cut of £3k per year and a reduction in your duties that you have carried out since July 2013 and have performed as implied terms as part of your original contract since 1st may 2014, after the fixed term contract terminated on 30th April 2014. The fact they continued to honor the terms of the fixed term contract on an after 1st of may confirms they accepted them as implied terms via variation of the terms of your original contract! It is also unreasonable for them to have not invited you to take the position full time at the end of your fixed term contract, if they had never intended to for it to become your permanent role, as per it now has!

Though to be perfectly honest given the complexity of the situation, i would suggest you speak with Acas and even an employment solicitor before sending the letter. As per what i said before they could argue that you knew the position was temporary, but then you could argue back that you knew it was temporary only till the fixed term contract expired on the 30th April, but as you continued the role firm 1st may onwards with no fixed end date that it therefore became permanent!

[stevemLS]

Re: Temporary "Acting up" agreement expired

I just happen today to have been in a meeting all morning with a number of barristers one of whom sits as a part time Employment Judge.

I put this situation to them and their view was that effectively you had no claim to the post, your employer was under no obligation to invite you to apply for it and that the notion that a failure to renew a fixed term acting agreement created a new implied contract was one unknown to them.

Sorry to be blunt, but there it is.

[jamie135]

Re: Temporary "Acting up" agreement expired

Thanks again!

In answer to you question they did not invite me to apply, although the position is a lower level position than my present job role and salary.

They wrote to me again today postponing the implementation date until January 12th and asking me to sign the letter indicating that I accept the change. Should I write informing them that I do not accept the change in salary or is this like giving notice? I will speak with ACAS next week as advised and see what they think - I guess the next stage would be filing a grievance about the change in salary including the details about the temporary contract etc?

thanks again!

[teaboy2]

Re: Temporary "Acting up" agreement expired

Point is the fixed term contract had ended, and he was still expected to carry on the additional duties that were part of the terminated fixed term contract under his original full time contract, and the employer was also honoring those terms after the fixed term contract had ended too. Therefore their was a variation of terms of his original contract from the 1st of may onwards! And yes whilst they had no obligation to offer the position to him, the fact is the act of continuing to honor the terms, after the fixed term contract had ended, by both parties amounts to agreement of variation of the terms of his original contract. So the position became his as a result of the variation of terms!

So its not a question of if the terms are implied terms (as they are in fact established terms of his contract by agreed variation through both parties actions from 1st may onwards) but a question of if the terms and the continued honoring of said terms of the fixed term contract after it had terminated amount to a variation of his original contract of employment. The answer is yes, a variation of terms has occurred and was agreed to by both parties via their actions, with no term/clause stating that the varied terms were temporary! Basic contract law!

So yes the terms and duties are now formally part of the OP's original contract via variation of terms!

In other words, both parties mutually agreed to continue to honor the same duties and terms that formed the fixed term contract, after it had ended, under the OP's original full time contract of employment. Said mutual agreement is a variation of the terms of the original contract, and it does not need to be in writing or done verbally as mere consideration is all that is needed i.e. new benefits being granted by each party to the other party; those benefits are the carrying out of additional duties and role (under the original contract of employment) and increased pay rate in return!

[teaboy2]

Re: Temporary "Acting up" agreement expired

Thanks again!

In answer to you question they did not invite me to apply, although the position is a lower level position than my present job role and salary.

They wrote to me again today postponing the implementation date until January 12th and asking me to sign the letter indicating that I accept the change. Should I write informing them that I do not accept the change in salary or is this like giving notice? I will speak with ACAS next week as advised and see what they think - I guess the next stage would be filing a grievance about the change in salary including the details about the temporary contract etc?

thanks again!

Basically they are asking you to agree the change so they can vary the terms of your contract back to what your original terms of contract were. So if i am wrong and there was no variation of terms of your employment under your original contract of employment from the 1st may onwards. Then they would not need or be seeking your agreement to the change?

I would contact Acas, and then write to them pointing out that they agreed a variation of your original contract terms, by 1 not extending to the fixed term contract, and 2 by instead expecting you to carrying out the role and duties as part of your original contract from the 1st May 2014 onwards, effectively giving you the position full time, by variation of the terms of your original contract to include the terms and duites that form part of the fixed term contract that terminated on the 30th April 2014. The variation of terms does not have to be agreed verbally or in writing but as a result of acts honoring those terms from 1st may onwards and by consideration i.e. new benefits being granted by each party to the other party; those benefits being the carrying out of additional duties and role (under the original contract of employment) by yourself, in return for increased pay, which was subsequently paid to you by them from 1st of may onwards! And indicated to them that you will not accept the change unless your Pay rate is no effected and that your willing to take on additional duties to reflect the pay rate they would be paying you - That way your being reasonable and showing willing to negotiate an acceptable alternative that is of mutual benefit to both parties!

[stevemLS]

Re: Temporary "Acting up" agreement expired

I'm so sorry OP, but in the view of an Employment Judge, it just does not work the way teaboy suggests.

Talk to ACAS, see what they say.

[teaboy2]

Re: Temporary "Acting up" agreement expired

I'm so sorry OP, but in the view of an Employment Judge, it just does not work the way teaboy suggests.

Talk to ACAS, see what they say.

In all due respect the employment judge you said you spoke to doesn't know the details to the case. Not to mention the fact that if no variation of contract had taken place, then they wouldn't now be asking him to sign in agreement to new terms and reduction of pay, like there now are - Would they?!

The key here is whether consideration had taken place, both parties have demonstrated that they had given consideration to the terms by new benefits being granted by each party to the other party under the OP's original contract of employment, by allowing the fixed term contract to expire instead of extending the fixed term contract and therefore allowing the OP to perform the same terms and duties as part of his original contract of employments. Whilst at the same time the employer also carried out their duties under the now exipred fixed term as part of their duties to the OP under his original contract of employment - - Such consideration amounts to a variation of terms mutually agreed to by both parties

This is not employment law, but contract law! Employment Law doesn't cover it!

If i had a written contract with a supplier to supply me with 200 units for £500 and said units sold extremely well, and another supplier had offered me the same QTY for £450, leading me to call the original supplier and say "look i can sell these easily but i want a better deal, how about 200 units for £425 on condition that i use them as the main/only supplier for those units instead of the using the another supplier that had offered me 200 units for £450?". And they then said they would look into it but neither agreed or disagreed either verbally or in writing but went ahead and supplied the next 200 units for £425 then they have shown consideration to the new terms and therefore the terms of the written contract have been varied under the law of contract consideration, with no new written contract being needed! Therefore the original written terms of the contract will have been varied! The same applies to the OP here!

[stevemLS]

Re: Temporary "Acting up" agreement expired

Teaboy, Judge had the same facts you have, but more importantly, did not believe a substantive employment contract could come into force in these circumstances.

And, yes, employment contracts are contracts, but are a special category of contracts which limit the freedom of (both) parties to contract on whatever terms they choose, which they are normally able to do. Just as consumer contracts have special protections.

But - I give up - OP take whichever advice you prefer. Let us know how you get on.

[teaboy2]

Re: Temporary "Acting up" agreement expired

That doesn't mean the terms of an employment contract can not be varied by consideration - Many have and many have been upheld as being so at tribunal! Its no different to giving someone a pay rise without actually giving them new written terms of their contract to sign agreeing to the variation! And how many times have you heard of people being given pay rises with no new written contract to show the variation of their new pay/salary! It happens everyday!

Ohh and no new contract has come into force. He simply reverted back to his original contract when the fixed term contract expired, only he was still expected to perform the duties he had performed under the fix term contract after it had expired, as part of his original contract of employment! Therefore he reverted back to his original contract where the terms of which had been varied to reflect the additional duties he had performed from 1st of may 2014 onwards! Hence why the employer is asking him to sign in agreement to a pay cut and changes to his duties! They wouldn't need to do that if his terms of employment had not be varied under his original contract of employment!

Yes i agree employment contracts are limited as to what terms can be used in an employment contract. But that's not the issue here, and theres nothing stopping those terms allowed in employment contracts being varied as a result of consideration of contract. In this case the terms varied are Duties, role and pay, all of which are core terms of an employment contract!

End of the day its the employer that has made a mess of things here - They should simply have extended the fixed term contract instead of allowing it to expire and the OP to then revert back to working under his original contract of employment whilst still performing the same terms and given the same benefits for performing those addition terms!