Law Queries: custom and practice

Q. How can we show that something has become a contractual term through custom and practice?

A. If a particular practice has been operating in a workplace so regularly that everyone takes it as read that it will always apply, it can become an implied term in the contract of employment through custom and practice. The test that the courts use is whether the term is "reasonable, notorious and certain" - "notorious" in the sense that it is common knowledge.

The term must have been followed for a substantial period without exception. If, for example, workers have had New Year's Eve off and been paid for it for as long as anyone can remember, even though there is nothing in writing, the right to the day off is likely to be viewed as a contractual term.

In the case of Quinn v Calder Industrial Materials [1996] IRLR 126, employees argued that they were entitled to enhanced redundancy terms that had been applied four times within a period of seven years. However, these terms had never been applied automatically - on each occasion, management had decided whether they were to be offered. The EAT decided that the terms had not become a contractual entitlement.