Forcible reduction of FTE by employer against employee's consent

[TopCat1]

Company A made temporary workers permanent a couple of years ago. These workers were previously paid on a piece rate by taking on work on a module by module basis, some had an FTE very much higher than 1. Company A stated that that at the point of transfer no worker would be financially worse off. While Company A were embarrassed to find many workers had an FTE far in excess of 1, they agreed to honour this FTE and provide permanent contracts to these at a fixed salary in the same way as those who had fractional contracts with a FTE of for example 0.1 upwards to 1. All of these workers became salaried being paid 1/12 of their now agreed and permanent wage each month. Those workers who had a FTE in excess of 1 signed an opt out of the 48 hours per week working time regulations.

Two years have now gone by and the employer now insists on reducing these high FTE employees to an FTE of a maximum of 1. These high FTE employees don't want their FTE forcibly reduced. Employment law suggests that a salary cannot be reduced without the employees consent.

What advice could be provided to these employees please who wish to maintain their high FTE and what legal options are open?

[ULA]

Can you confirm that in your post FTE is short for full time equivalent?

[TopCat1]

yes FTE = full time equivalent

[ULA]

What does their contract state about being able to make changes to the terms and conditions they were employed under?

Whilst waiting for your answer to the above, I will set out some general comments regarding an employer making changes to terms and conditions of employment which they can do but they need to follow a fair process to implement a significant change/s if they do not want to face a claim for breach of contract. To do this the employer needs to fully consult with the relevant employees and agree any changes, however if they do not agree, the law does recognise that employers have to adapt to changing market conditions and that sometimes the contract of employment must be varied to reflect this.

If the employer has given reasonable and due consideration to any objections and alternative suggestions that have been put forward, but deem those suggestions to be unworkable, then they can terminate the original contract and offer a new one in its place, on the new terms. If the individual does not agree to the changes, then they must make it clear in writing and this should be set out as as grievance.

If individual's do not tell the employer they disagree with a change, this will be taken to mean that they have accepted it. They need do this straight away, or as soon as possible after the change has been introduced.

Individuals can continue to work 'under protest' for a while but this cannot continue indefinitely without taking further action. This may mean making a claim to an employment tribunal, or, in some extreme situations, resigning and claiming constructive unfair dismissal but I would caution on this course of action. If an individual does not want to do either of these things, then they will eventually have to accept the changes to their contract.

[TopCat1]

The union has informed the employer that they are in breach of contract by proposing reducing FTE. The workers affected all have an FTE in excess of the working time regulations and they have opted out of the working time regulations by signing a waiver.

To dismiss an employee lawfully, have to be able to provide a fair reason. There are five potentially fair reasons for dismissal set out under section 98 of the Employment Rights Act 1996. These relate to employee conduct, capability and performance, redundancy, breach of a statutory restriction or Some Other Substantial Reason (SOSR).

The employer is requesting the workers reduce their FTE in stages if they refuse to do this they will be fired and re-hired. I gather the employer would rely on the SOSR (some other substantial reason, see the1996 Employment Rights Act). The employer I understand would need to show that they were implementing the change for 'sound business reasons' and demonstrate this with evidence. The reasons for reducing FTE of those in excess of the working time regulations are not economic (the employer has stated this), they state they are doing it for the welfare of their workers (token reason), staff dispute this token reason by stating a pay cut won't help their welfare in a cost of living crisis or at any other time.

From what I gather what doesn't fall under SOSR are reasons deemed to be automatically unfair, i.e. circumstances where the dismissal "violates the worker's statutory employment rights". The Employment Rights Act 1996 and the Working Time Regulations Act 1998 highlight the principle of "no detriment" to an act of an employer to an employee where they "refused (or proposed to refuse) to forgo a right conferred on him by those Regulations".

There is a right to the employee to opt out of the Working Time Regulations and therefore work more than 48 hours per week. Presumably the employer using "fire and re-hire" in this case would be construed as forcing the employee to forgo these rights.

Would I be correct in thinking that in this case the employer could not use SOSR based on what I've outlined above?