Can My Employer Reduce My Hours?

Thanks for your question. You have raised a number of questions and there are a number of possible claims which I shall answer in order. This is a summary based on the information given but I always recommend seeking specific employment advice based on full information for this type of complex situation:

Can my employer legally reduce my hours?

You say that you have never received a written contract. Under Section 1 of the Employment Rights Act 1996 (“ERA”) an employer is required to give an employee a written statement of particulars setting out their main terms and conditions of employment. A failure to comply with this entitles an employee to refer the matter to an employment tribunal. Where changes are proposed to be made, the ERA states that an amended statement must be provided within one month of the change.

However, just because you don’t have a written employment contract it does not mean that there is no employment contract in existence. Employment contracts are made up of a variety of terms and conditions: there are verbal or written express terms; statutory imposed terms; implied terms which have been created by the courts; and terms which may be incorporated from other documents.

As with all contracts, in order to change an employment contract an employer and employee should ideally need to agree any changes otherwise an attempt by one party (in this case your employer) to force a change could potentially be a breach of contract. In this situation your employer has simply told you that your hours will be reduced from 39 hours to 16 hours a week as a “fait accompli” – take it or leave it. It’s also, however, possible that this is a redundancy situation if your manageress role is disappearing.

Is this a unilateral change of contract or is it a redundancy?

It’s not always easy to determine whether changes to a job mean it’s a redundancy situation or just a unilateral variation of contract. Based on the information given it could be either scenario so I’ve set out both possibilities.

There are only three types of redundancy as defined in the ERA. These are:

1. Closure of a business – that is not the case here;

2. Workplace closure – again that is not the case; and

3. Reduction in the number of employees or carrying out work of a particular kind- it’s not entirely clear whether your manageress role is disappearing and whether you are being forced to take a reduced role as well as reduced hours. In this situation a reduction of work from full-time to part-time will not automatically mean a redundancy it will depend on the tasks you will now be required to carry out and the skills required to perform. As your boss is taking on three out of five of your working days then your role may well be redundant.

As you have more than two years’ continuous employment with your employer you will be entitled to a redundancy payment.

If your job has become redundant, your employer has certain obligations. These obligations include giving or paying you notice, statutory redundancy pay, consultation with you to try and prevent your job disappearing and the consideration and offer if available of suitable alternative employment. If the terms offered differ from the previous contract you are entitled to a statutory trial period of four weeks to decide whether this alternative employment is suitable for you. The key factors of suitability are pay, nature of duties, status, hours and location. If after four weeks you do not find this role suitable you can choose not to accept this role and be made redundant with notice and redundancy pay.

You think you are being unfairly selected in this process. A part-time person has been recruited to cover weekend shifts you don’t work. Without knowing the details of all the other employees it is difficult to state whether this is the case. If you are selected unfairly it could make your redundancy an unfair dismissal, entitling you to make a claim at an Employment Tribunal.

If not a redundancy situation the other option is that your employer is forcing you without consent to change your contract, known as a unilateral variation. In a unilateral variation, you have four possible options which I have briefly summarised below. I always suggest that you take full employment legal advice so that you can weigh up all the pros and cons of each option because they are difficult decisions to make:

1. You can simply accept the change

2. You can refuse to accept the change. You would need to raise a grievance with your employer in writing that you don’t accept this change. Your grievance should be in writing setting out all your complaints (e.g that you don’t believe that it is for financial constraints; that it could be that your employer is punishing you for your complaint to licensing about his refusal to take your autistic son – see below for the potential of a disability discrimination claim; and that your boss is going to replace you with other people paying cash). The employer would then need to respond to your grievance. If your employer does not uphold your grievance then you could either:
   1. resign and claim constructive unfair dismissal (a type of unfair dismissal claim at the Employment Tribunal) on the basis that the employer has fundamentally breached the employment contract; or
   2. Alternatively, you could wait and your employer would expect you to accept the change or he will dismiss you for refusing to work under the new regime. You would then be eligible to claim unfair dismissal at the Employment Tribunal. The main concern with waiting to be dismissed is that if you wait too long, there is a risk that you have accepted the changes by doing nothing further and working under the new contract.

3. You can stay at work, accept the changes “under protest” and sue your employer in the Employment Tribunal or County Court for damages for breach of contract. Again, you would need to raise a grievance with your employer and then if the grievance fails you would claim. The concern with this option is that if you delay in making your claim you may be treated as if you have waived your right and accepted the change. Your employer may still dismiss you, in which case you would have an unfair dismissal claim at the Employment Tribunal.

4. You can resign or stay and bring a claim under s23 of the ERA for an unlawful deduction of your wages without your consent.

Why am I being asked to take my holiday now before starting the new arrangement?

The Working Time Regulations 1998 give all full time employees a statutory holiday entitlement of 28 days including the public holidays. Part time employees are entitled to the pro-rata equivalent of 28 days depending upon the number of days worked. You or your employer can decide when some or all of your holidays must be taken by giving advance notice. The Regulations provide that the notice should be at least twice as long as the holiday requested but you may have different rules in your office. There is no particular reason why you had to use your holiday. I suspect that your employer does not want you to carry forward all your full-time entitlement because you may have too much holiday to take before the end of the holiday year.

Has this happened because of the issues with my autistic son and my employer?

If you have been treated less favourably by your employer by reason of your association with your son who has a disability, you may have suffered direct disability discrimination by association. This may entitle you to make a disability discrimination claim at the Employment Tribunal. You will need to seek specific legal advice about whether this claim is available based on your circumstances.

Will I still be eligible for Working Tax Credit?

Working Tax Credit is paid to those who work but who are on low income. It is based on the hours you work and get paid for. As a mother you need to work a minimum of 16 hours a week to qualify. You need to notify your Working Tax Credit Office of your reduced hours to ensure you receive the correct amount of benefits.