Hours to change after job share partner left

I currently work part time all day Monday, all day Tuesday and a half day on a Wednesday. The department that I work in has had a reshuffle and they have got rid of the temp who job shared with me at the end of the week. They are now bringing another lady over to my team who is currently on maternity leave. Unfortunately she works the same hours as me. We have both been put in consultation and they have now announced after a few meetings that I will be moving to the end of the week and the other lady will have my hours at the start of the week. Is there anything I can do? I have no one to collect my daughter from school at the end of the week whereas on a Monday and Tuesday I have cover. Can I refuse to have my contract changed? If I refuse could I lose my job?

The starting point is to look at your contract and see if your employer reserves the right to change your work days or hours. Even if the contract does, then any such change must be done reasonably and after consultation. If it does not, then your employer cannot vary the terms of your contract of employment without your express agreement; this includes the days and hours you work. They would be expected to consult with you, explaining the changes they want to make and the reasons they want to make them. They may also be expected to engage in some negotiation, with a possibility of finding a compromise with which both they, as the employer and you, the employee, are happy.

However, there are sometimes situations where employers have no option but to make changes to their business, which may impact upon terms and conditions such as working hours. In these situations if the employer has been through a fair and reasonable consultation process, and the parties still cannot agree, then the employer may be faced will little alternative but to terminate your contract altogether (i.e dismiss you) and offer you a new contract on the new terms.

If you have been employed for more than two years then you can potentially claim the dismissal was ‘unfair’ whether or not the dismissal is fair will depend on whether the employer has acted reasonably in all of the circumstances in coming to their decision. This will include the reasons why they tried to vary the contract in the first place, whether or not they have engaged in meaningful consultation and how they have behaved through that consultation process.

If the employer can show that the variation to the contract was for genuine business reasons, and they have engaged in a reasonable consultation with you and there were good reasons for moving you to later in the week rather than your colleague, then it is possible that the dismissal would be considered fair. If you refuse to work the adjusted days requested by your employer, they might give you notice and at the same time formally offer you the new days. But, if they did so, your employer would also be taking a risk because, based on the information that you have provided, it is questionable how reasonable their decision has been, and so the dismissal could be seen as unfair.

It is apparent that your employer requires your role to be filled five days a week, but they are happy to operate on the basis of two different people sharing the duties of that role. That is a potentially fair and reasonable rationale to propose a change in contract.

It is also apparent that your employer has engaged in some consultation on the issue. Again, that is the fair and correct thing to do.

What is unclear however, is why someone from a different team altogether has been brought in to do your role, when their working hours clash with the hours that you are already able to cover. It could be that the other lady’s previous role has been made redundant while she was on maternity leave. In this case, the business would have certain obligations to find her a suitable alternative role and place her in it.

But there is no reason why this should be at your expense given that there is not a vacancy working at the start of the week, your role is not at risk of redundancy and there is no need for you to have to change your working hours. Therefore, all things being equal, the lady from the other team should have been offered the end of the week and if she was unable to do this then she would be made redundant. Only if her current role is redundant and your employers believe that she has better skills than you is there a possibility of you being ‘bumped’ from your current role and made redundant.

Even if your employer can justify this move, and the other employee has similar responsibilities outside of work that require her to have the same working pattern, neither employee should be forced out of this pattern until all other solutions (within reason) have been considered by your employer. This should include trying to find a compromise between the parties, such as splitting the days that you would not normally work, or alternating weeks when one party works the first half of the week and the other the second half. This might not be ideal but it may still be worth suggesting to your employer and the other employee so that you can both remain in the role.





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