Can I be made to work full time in a restructure?

Since 2015 I have worked four days per week in my current role. My employer is having a restructure of the department and has stated that all the new roles in the new structure will be full time only. I have said that I am not happy to do this and they have said that if I want to continue working in my role I must work full time. I asked if they were any redundancy options available and they have said no as the role still exists. Please can you advise with what I can do next?

Employee Rights

 

As you normally work four days a week this is your contract of employment. Your employer cannot unilaterally change your contract of employment to the new full-time role. If they want to change it they will either need to get your consent (which you haven’t given) or show that they have a potentially fair reason for dismissal that they can rely on to end your current four-day role and create a new full-time role. They would also need to go through a proper process with you.

As you have worked there for more than two years continuously you have protection against unfair dismissal. They will therefore have to show they have a potentially fair reason for making the changes. Potentially fair reasons can include redundancy situations or ‘some other substantial reason’ (SOSR). This last category is a bit of a catch all category which can cover a wide range of business decisions.

A restructure is usually either a redundancy situation or an SOSR situation, depending on the type of restructure. A true redundancy situation only exists where there is a reduction in the work that needs to be carried out and a business needs fewer people to carry out the work that is left. Technically this doesn’t apply to your situation as they are actually saying they need more people to do the role and not less. Where a business is restructuring and changing jobs roles and titles but not ultimately losing staff overall it is more likely to be an SOSR situation, although many employers will treat it as a redundancy situation or offer a redundancy payment anyway in recognition of the impact the changes are having on individuals. It is a shame your employer does not seem to be taking that approach.

If they are adamant that the role needs to be full time and they wanted to fairly bring your existing role to an end and force you to take the full-time role they would therefore have to show that they had some other substantial reason to make this change. This is sometimes referred to as dismissal and re-engagement on new terms. To do this, they would also have to go through a consultation process with you and show that the decision to dismiss you from your existing role and re-engage you on the new terms (ie full time) was reasonable in all the circumstances. This would include your situation and the businesses situation. It is difficult to advise on the likelihood of them being able to do this without further details, but the size of the employer will be relevant as will their reasons for believing it needs to be a full-time role. It sounds likely that you could potentially have an unfair dismissal claim if they can’t meet these tests.

You may also be able to argue that the decision was discriminatory. This will depend on your reason for working part time and their reason for wanting the role to be full time; but if, as I presume it is, it is for childcare reasons then you could argue that their decision to make the role full time is indirectly discriminatory. There is a presumption in employment law that women have more childcare responsibilities than men. Therefore decisions by businesses that roles must be full time or can only be done in a certain way can often be held to be indirectly discriminatory as it is harder for women to meet those requirements whilst also caring for children. If you haven’t already done so I recommend you raise this with them as part of the discussions.

On a practical level, to try and encourage them to change their minds you could also put forward any suggestions you have for how the additional work could be covered instead. This will obviously depend on why they think the role needs to be full time, but if you can suggest alternative arrangements or solutions it will help to make their position look even more unreasonable. For example, working slightly longer hours on your working days (if feasible), shorter lunch breaks, identifying someone else who could pick up key tasks or who could take another task away from you so you can devote the extra time to the new work they want you to do. If all else fails you could suggest that you have a trial period for six months of doing the job in four days. You could keep evidence during that time of meeting the requirements of the role and the business may then find it much harder to argue at the end that the role must be full time.

Good luck with the conversations with your management and we hope they realise how valuable long-serving employees are to a business and adapt their plans following your conversations.

*Charlotte Farrell and Tabytha Cunningham are Associate Solicitors at Paris Smith in Southampton.



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