Asked to go full time or risk being sacked?

I have been given six weeks notice from my job. I have been working part time, three days a week for six years, for a firm of solicitors. They have asked me a few times if I would go full time and I have said no as I have two children and I don’t want to work full time. I did say I would do four days if that helped them and they said no. Then I got told they were giving me notice and had already got a full-time secretary lined up. I asked them if I was being made redundant and they said no as they had offered me the job and I had turned it down. They also referred me to a case of Barnes v Gilmartin and said the work had not diminished. Could you tell me if what they are saying is right and what I should do next as obviously I am up against experienced people who know the law inside out?

I note that you have been employed for a period of six years. On this basis, you will have protection against unfair dismissal. It is not clear from the brief details that you have provided whether your employers have followed a fair procedure before giving you notice of termination of your employment. Your employer would have been expected to undertake a fair procedure before dismissing you, which would have involved meaningful and conscientious consultation with you before rejecting your request to continue to work three days a week or, indeed to work four days a week. It is also not clear whether other alternatives to dismissal were considered (for example, employing another part-time secretary to job share with you and/or moving you to another part of the business). In order to properly advise you in respect of this, I would need to know more detail in relation to the discussions and meetings you had with your employers before they decided to dismiss you.

I note that your employers refer to the case of Barnes v. Gilmartin Associates. This was a case involving the dismissal of a part-time secretary who was replaced by a full-time secretary. Whilst it is true that the Employment Appeal Tribunal held that there was no redundancy situation in these circumstances (as the requirement for secretarial work had not diminished) the issue as to whether you have been unfairly dismissed will be very fact specific to your case and will involve an analysis of the matters I have referred to above.

You may also have a claim for indirect sex discrimination. Given your childcare responsibilities, it is likely that you will be able to establish that the requirement imposed upon you by your employer to work full time, has a disproportionate and adverse impact upon women compared to men. In these circumstances, your employer would have to be in a position to objectively justify its decision to reject your request to continue working part time or indeed four days per week.

Inevitably, this would involve a very careful consideration by the Employment Tribunal of whether there was a real need for the imposition of a five-day working week rather than a four-day working week in your case (and indeed consideration of whether any rejection of any alternative arrangement such as job sharing was justified). An Employment Tribunal would also have to consider the seriousness of the impact of the requirement to work full time on yourself and evaluate whether your employers’ need was sufficient to outweigh the disadvantage to you. Your employers may find it difficult to objectively justify the requirement to work full time where you had been working part time for the last six years.

It is very important to note that there is a strict three-month time limit for pursuing claims for unfair dismissal and sex discrimination. The time limit runs from the effective date of termination of your employment (in respect of claims for unfair dismissal) or the discriminatory act complained of (in respect of a sex discrimination claim). In such circumstances, I would recommend that you seek urgent advice in this matter.





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