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Q: Our employees’ contracts require them to work until 5.00 pm but for some time they have been leaving at 4.30pm on Fridays. I want to put a stop to this but they are claiming “custom and practice”. What is that and how do I stand?
A: Custom and practice is something that has been going on for a reasonable time, is not unlawful, and management either knew about or should have known about.
It becomes as much a part of the contract as the rate of pay, for example, and supersedes any previous arrangements.
“A reasonable time” is not defined in law. If your employees have been leaving early for no more than about a month, you would be within your right to bring them back to working until 5.00pm. More than that and custom and practice almost certainly will have set in. If you force them to revert to a 5.00pm finish they may well sue you for breach of contract.
(This topic is covered in detail in our Employment Law courses)