Assumed/implied contract

[Hullabaloo9]

I have worked in the same role for the same employer for 11 years. Its hospitality and the nature of the work is that we work the hours required. However, over the last 11 years there has never been a week whereby I have worked under 25 hrs, usually much much more.

Due to the pandemic obviously the industry has been hit hard. There is not enough work at the moment for all staff. The boss expects us all to drop to approximately 5 to 10 hours per week, ad hoc, for the foreseeable future. He is not explicitly asking us to reduce hours just telling us not to come in daily. When asked he just says "you are paid hourly, remember".

Am I right that we have an assumed contract here with a baseline of 25 hrs or thereabouts. Surely 11 years of payslips, p60's etc are evidence of this?

I think he needs to provide an acceptable amount of hours or make redundancies. Either would be fine. Can he legally drop our hours to such an extent with no discussion or offer of redundancy?

It is likely that you would be able to argue that "custom and practice" has given you a right to a minimum of 25 hours per week. If you have established that right, he needs to follow a fair process to reduce your hours. He should seek your consent and give notice of the change. If he imposes this without your consent, you may be able to claim constructive dismissal, but note that such claims are hard to win. You would have to leave your job immediately if you wanted to claim - if you continue working after he has reduced your hours, you would have accepted the change.

Hmmm ok. That's not really what I was hoping to hear. Really I would welcome either the hours or redundancy. I have a feeling he's trying to make the job untenable so we leave and he saves on the redundancy pay. I was hoping we basically had a right to either the baseline hours or redundancy.

I would call ACAS on Monday and ask their advice

Without a written contract there's no guarantee of anything much. As @prh47bridge says, you have a reasonable case though.

You would need to email him and say plainly (and in writing) that you won't work less then 25 hours because (by long-standing custom) that is your arrangement with him. Then if he reduces your hours anyway without following a fair consultation procedure you need to leave (which is sounds like you would anyway). You would then need to start a tribunal claim on the basis that your resignation was in fact "constructive dismissal", in other words he provoked it, and effectively sacked you by making the job untenable by breaking your unwritten contract. He would need to show a fair reason for the dismissal which he doesn't have (except for redundancy, which is a fair reason, but of course requires a pay out).

The starting point for a payout would be 11 weeks wages. Whether you want to go through all that to get it is the question (and it's not certain that you would).

I should add that my knowledge of employment law is dated, and I stand to be corrected by others!

@Hullabaloo9

Hmmm ok. That's not really what I was hoping to hear. Really I would welcome either the hours or redundancy. I have a feeling he's trying to make the job untenable so we leave and he saves on the redundancy pay. I was hoping we basically had a right to either the baseline hours or redundancy.

You may do and, in theory, he can't reduce them without your consent. However, if he ignores that and reduces them anyway, your options are limited.