A recent Court of Appeal decision has said that previous conduct by an employer may mean that there is an implied term in the employees contracts entitling them to enhanced redundancy payments.
This reasoning can of course apply to any term not just in the case of redundancies. What the Court of Appeal said was that in deciding whether a term has been implied, the tribunal must examine the intention of the employer objectively. It is not whether the employer actually intended to be bound, but whether the employer's conduct, viewed objectively, conveyed to the employee that the employer intended to be bound.
What is clear here is that employers should ensure that they encompass all terms and policies in written documents so there can be no question of ambiguity but if there are to be discretionary or ad hoc policies not in writing then the employer should set out that they are only ad hoc and will not necessarily be followed in that way going forward. This way there can be no way of deciding objectively that the employer intended to be bound going forwards.
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