The challenge
A friend is a residential carer at an organisation that looks after multiple residents with learning difficulties. The job is shift-based and includes sleepovers.
Historically, the company has included a food allowance for resident carers (it covers shopping for sustenance while onsite). Due to the nature of service users, carers prepare food and eat with them – the aim is to be inclusive and prevent service user confusion.
But the firm has now decided to withdraw this "benefit" and the carers’ T&Cs have nothing to say on the matter. It represents a considerable drop in an already poor benefits package and any change to the current set-up could result in confusion and disruptive behaviour from service users. I can see an argument of precedent.
Where does my friend stand legally and what can be done? The source of the budget is in question.
The legal verdict
Esther Smith, a partner at Thomas Eggar
You are right that there is an argument of precedent here – even if the contract or written terms and conditions make no reference to this food allowance, if it has been provided consistently over a period of time, as your question suggests, there is a strong argument that your friend has a contractual entitlement to the benefit as a matter of custom and practice.
The removal of this benefit could, therefore, be a breach of contract, and your friend could raise a grievance about its removal to see whether the employer might be persuaded to reconsider.
They are ultimately entitled to resign and claim constructive dismissal on the back of this breach of contract, but in order to have a good claim, they would need to show that the breach on their employer’s part was fundamental. It is also a very big decision to walk away from a job given the risk of bringing a claim.
Esther Smith is a partner in Thomas Eggar‘s Employment Law Unit.
Adam Partington, solicitor at Speechly Bircham
As suggested when you mention precedent, even though the payment of a food allowance has not been expressly provided for in carers’ employment contracts, it may be that such an entitlement has become implied into their contracts through ‘custom and practice’.
Whether the provision of a food allowance has become a term of the carers’ contracts through custom and practice can be difficult to determine, however, and, ultimately, is for a Judge to decide. In essence, provision of the food allowance would need to satisfy the legal test of being “certain, reasonable and notorious”. So ask yourself:
- Is the policy certain in the sense that it has been followed without exception for a long period of time?
- Is the policy fair and would it be reasonable for carers to expect a food allowance to be paid indefinitely?
- Is the policy well-known by all carers and how were they made aware of it?
Even if you answer all of the above questions in the affirmative, the wider factual context could also be relevant, for example, what is the normal ‘market practice’ for resident carers?
Your friend will also probably need to show that, in the past, the company has continued to pay the food allowance because it regarded itself as having a legal obligation to do so. This can often be a hard test to satisfy.
Check contracts carefully
But it is likewise important to check carers’ employment contracts carefully for:
- Express terms that may exclude any terms being implied into the contract through custom and practice
- An “entire agreement” clause that aims to limit the scope of the contract to what has been expressly provided within it (depending on how the clause has been drafted). Such clauses may be used to defend against any argument that there is an implied contractual entitlement to a food allowance.
If it is established that the food allowance has become an implied contractual term, and the company unilaterally withdraws this benefit without an express contractual right to do so, a number of possibilities are opened up for employees.
These include ‘standing and suing’ (ie working under protest and bringing a claim for breach of contract) or resigning and claiming constructive dismissal if the breach is sufficiently serious.
It would be advisable to seek further legal advice before going down either of these routes as your friend would need to take specific steps to protect their position and ensure that their actions did not prejudice their rights.
Adam Partington is a solicitor at Speechly Bircham LLP.
