The majority of mums taking part in a Workingmums.co.uk poll say tax-free childcare has...read more
I am the manager of a taxi firm and work 39 hours per week Monday to Friday. My boss used to drive my autistic son to his special school until an incident occurred and he refused to take my son on this contract. I reported him to licencing for driving while talking on his mobile. Things have never been the same since and he has now reduced my hours to 16 hours with immediate effect. I will only be working two days a week on minimum wage. He said I can use my holidays this week and start back next Thursday 31st March. My other problem is that he took on a part timer about three weeks ago and this doesn’t affect him, whereas I’ve been here for well over five years. I’m also concerned that he pays other people cash in hand to cover some shifts in the office.
Please can you tell me my rights, as I need to inform working/child tax that I’m going part time. Can he legally do this to me? He says things are financially strangling him and will cover my shifts. I’m paid cash, fully on the books, get a weekly wage slip along with a weekly wage. I claim working tax and child tax credits and am the sole earner in our household. I have never received a written contract, but so far, he’s stuck to all aspects of employment law ie 28 days holidays etc and the correct minimum wage.
Answer still valid as of as of August 2017
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:
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.
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:
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:
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.
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.
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.