Working above my job description for two years. What are my rights?

I have been working for my employer for over 25 years and working above my job description for two years. This is not an official temporary position or secondment.  When I challenged this there was some discussion that my employer might have to create a new post for the role I was performing and put the job out to interview.  What are my rights?

Redundancy concept. Know your rights sign.


I understand that for two years you have been working at a skill level above the role you are employed in, and that this has arisen due to understaffing and your employer’s expectation that you and your colleagues will take on any additional tasks. I understand also that these additional tasks and seniority have not been recorded in writing as a secondment or formal agreement, and that the additional tasks you are carrying out currently are not part of an existing role. You have explained that your employer believes it would have to create a new role to cover the additional tasks you are performing currently, and this would be advertised.

You want to understand if your employer has to permanently change your role and tasks to incorporate the additional duties because of the length of time you have been performing them. In assessing this situation, the starting point is to check whether your employment contract includes a provision requiring you to perform additional tasks, subject to the needs of your employer. If such a clause exists, your employer could argue that performing these additional tasks are already part of your contractual duties, and that you are not entitled to be upgraded to a more senior role.

If such a clause does not exist, it might be possible to argue that they have become part of your contractual duties by way of custom and practice. You would need to show that the fact that you are performing tasks outside of the usual remit of your role is well known, reasonable and accepted by both you and your employer and they have become an implied term of your contract. However, it would be difficult to then argue that you are entitled to additional remuneration for those tasks as this has not been negotiated previously.

Instead, your employer could argue that, over the past two years, you have accepted the responsibility of the additional tasks without any amendment to your salary. If your employer decides that there is a permanent need for these additional duties and that a new role is required to perform them, you will be in a strong position when applying for that role as you have performed the tasks for so long. Unless your employer agrees that these have, in fact, become part of your contractual duties and as a result, your job has changed on a permanent basis, there is no obligation on them to appoint you to the new role without advertising it.

At this point, I suggest you consider what your ideal outcome is, whether that is to be appointed into a more senior role which would require your employer to create the role formally, or be paid an acting up allowance for taking on these additional tasks, or to revert to your previous contractual duties. Once you have identified your preferred outcome, you can then discuss the situation with your manager about achieving it.

*Maria Hoeritzauer is a Partner at Crossland Employment Solicitors in Abingdon.

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