Job share offer rescinded: ask the expert

After taking 12 months’ maternity leave it was agreed with my current employer for me to return on a job share basis for 2.5 days per week. As the other employee in the job share was not due to return to work at that time I was granted an additional four months’ unpaid sabbatical. As the job share was a new concept for my employer it was agreed in writing that it would initially be on a trial basis to be reviewed after six weeks to see if the arrangement was working. It was reviewed at that point and we were then verbally told that we would be put onto a fixed-term contract for two months.We did not receive anything further in writing at this point. We have now been told by our employer that they feel the job share is not working, but have not been told specific reasons as to why they believe this to be the case. Again we have received nothing in writing to inform us of this. The ultimatum we have now been given is to return to work for three full days and two half days per week, otherwise they can no longer offer us positions with the company. Before going on maternity leave I had done seven successful years for this employer and now feel as if I am being very harshly treated and ultimately being discriminated against.
I would appreciate your advice on the following points: 1. Were they within their rights to offer me only a trial period for this job share when I had previously been on a permanent contract before my maternity leave? 2. Should they have documented in writing to me when the job share was reviewed after six weeks that I would be put onto a fixed-term contract? 3. Should they have documented in writing the reasons why they feel the job share is not working?

Responding to the specific questions you have asked:

1. From the information you have provided, it appears that upon your return from maternity leave a change in your terms of employment was agreed for you to return to your employment on a job share basis for 2.5 days per week.  It was also agreed that this would initially be on a trial basis to be reviewed after 6 weeks to see if the arrangement was working. After six weeks it was stated you would work on a fixed-term basis for two months.

Although you have not received a fixed-term contract in writing, the Company could argue that you agreed to this change by continuing to work. You would have to argue against this.

2. The law states that every employee should have a statement of terms and conditions setting out the terms and conditions of their employment. You should receive this statement of terms and conditions one month following a change in terms. If you still do not have a written statement you can ask for one to be supplied to you in writing and if your employer fails to do so a complaint may be brought to a Tribunal. The complaint may be brought at any time during the employment or within three months after the termination of employment. The Employment Tribunal will have the power to determine what ought to have been included in the statement.

3. Your employer has now confirmed that it does not feel the current job share is working and has offered you as an alternative to your current arrangement, the option to work for three full days and two half days per week.  I presume therefore that your current fixed-term contract will expire shortly and your employment will either terminate at that point or you will agree to enter into a new contract based on the alternative your employer has put forward.

The expiry of a fixed-term contract is regarded as a dismissal in employment law and is therefore subject to the law of unfair dismissal. Any employee whose fixed-term contract expires without renewal on the same terms as before will therefore have the same rights to unfair dismissal protection and redundancy payments as a permanent employee subject to the usual qualification period.

In many cases, the non-renewal of a fixed-term contract will probably be potentially fair by reason of redundancy. However, if redundancy is the reason for the dismissal, the employer will have a duty to consider whether any suitable alternative employment is available for the employee.

If your employer is intending to terminate your fixed-term contract, you should receive a letter explaining the date on which your fixed-term contract is due to expire and providing an explanation of the reason(s) why the contract is expiring. You should be offered a meeting to discuss further and you should be given the opportunity to comment or make suggestions. After the meeting your employer should send you out a second letter confirming the date of the expiry of the contract or setting out any alternative decision and should also offer you the right to appeal the decision.

It appears that your role still exists given that you have been offered the same role, but with increased hours. There has been no explanation as to why you cannot continue to job share. This would assist with a claim for unfair dismissal, if you are subsequently dismissed as a result of not agreeing to work increased hours. Furthermore, you also have a potential claim for sex discrimination.

In the circumstances I would advise you to lodge a formal grievance in writing against your employer. Alternatively, if you feel that you can no longer continue to work for your employer, you may wish to consider the possibility of seeking a termination package from your employer or bringing proceedings at the tribunal.

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