The Liability of "Leniancy": Managing Custom and Practice in the Modern Workplace.

​For most Irish business owners, the Terms of Employment (Information) Act is the gold standard for defining the relationship with their staff. However, a significant legal risk often lurks outside the written contract.​

At statute.ie, we frequently see how "informal arrangements" evolve into "implied terms." If not managed correctly, these can become legally binding obligations that are nearly impossible to reverse without significant cost.​

The Definition of "Custom and Practice"​In an Irish employment context, a practice becomes a contractual right when it is followed so consistently that an employee has a "reasonable expectation" of its permanence. 

For the Workplace Relations Commission (WRC), the test often comes down to:

​Consistency: Is it a one-off or a standard procedure?​ 

Duration: How many years has this been the norm?​

Automaticity: Is the benefit given without the employer actively deciding to grant it each time?​

The "Flexibility Trap"​

In 2026, the most common area of dispute is Hybrid and Remote Work. What started as a temporary allowance during office renovations or local disruptions can quickly crystallize into a permanent right.​If your written contracts say "Office Based" but your staff have worked from home every Wednesday for two years without a formal "Temporary Variation" letter, you may have inadvertently changed their contract through Custom and Practice.​

3 Steps to Protect Your Business. 

​The "Discretionary" Clause is Not a Shield. Simply labeling a bonus or a perk as "discretionary" in a handbook isn't enough if you pay it automatically every year. To protect the discretionary status, you must occasionally vary the amount, the timing, or clearly communicate the specific business criteria met for that year's payout.​

Annual "Custom Audit"

Review your workplace culture once a year. Are there "unwritten rules" regarding early finishes, extended lunch breaks, or unofficial leave? If these practices don't align with your business goals, you need to address them before they reach the legal threshold of a "custom."​

Formalize the Informal

If you are granting a temporary benefit (e.g., allowing an employee to work from abroad for a month), always issue a "Side Letter." Explicitly state that this is a "temporary concession" and "does not constitute a permanent change to terms and conditions."​

The Statute.ie Compliance Tip: > Consistency is usually a virtue in business, but in employment law, unmanaged consistency is a liability. Ensure your managers aren't "going rogue" with kindness that creates a permanent legal obligation for the company.