I am a part-time worker and have been for several years. My company says it now needs to make my role full time. Do they have to offer me the full-time role? If not, do they have to give me the opportunity to apply for it?
Whether your employer has to offer you the full time role depends on several factors. The starting point would be your employer’s reason for requiring your role to become full time and the legal implications of this decision. More often than not, an employer’s position would be that a business reason has engendered the need for your role to become full time. In circumstances like this, if the employee is unable to make the switch, the employment relationship could possibly come to an end. Where this is the case, an employer would look to rely on redundancy or ‘some other substantial reason’ as the potentially fair reason for which the employment relationship came to an end.
Typically, employers are likely to argue that the circumstances fall short of meeting the statutory definition of redundancy in the hopes of avoiding the added obligations imposed by the statutory redundancy regime. They would rather argue that employees were dismissed for refusing to accept the changes and were dismissed for some other substantial reason (SOSR) instead. I explain further below.
A tribunal’s finding will be fact sensitive and be on a case by case basis, but case law suggests that replacing part-time work with full-time work (therefore increasing the amount of work overall) does not amount to a redundancy situation. In the event that a tribunal did find that making your role full-time amounts to a redundancy situation, this would entitle you to claim statutory redundancy rights if all other eligibility requirements are met.
There is no statutory obligation on an employer to offer suitable alternative employment to employees at risk of redundancy, although employers are expected to do so a matter of good practice. The only exception to this are employees at risk of redundancy who are on maternity leave, adoption leave or shared parental leave. Employees in this category have special protection, in that they have an automatic right to be offered any suitable vacancies. It is not clear whether any of the exceptions would apply to you. If they do, your employer would have to consider and offer you the full-time role, subject to a minimum trial period of four weeks.
Given that you have more than two years’ service (and assuming all other eligibility criteria for unfair dismissal claims are met), your employer must follow a fair procedure including ensuring that they adopted a fair basis for selecting you for redundancy and consulting with you. Case law has also established that a dismissal is likely to be unfair if, at the time of dismissal, the employer gave no consideration to whether suitable alternative employment existed within its organisation. Considering and offering you the full-time role would therefore be a prudent step for your employer to take in order to avoid a potential claim for unfair dismissal.
Alternatively, your employer may argue that the need for a full-time worker is engendered by a business reorganisation. From an employee’s perspective, the effect of such re-organisation can be said to amount to a change of the terms of their contract. At common law, a contract may be varied only in accordance with its terms or with the parties’ agreement. As a result, where an employee refuses to accept a change to their terms and conditions, the employee may resign and claim constructive dismissal if the breach goes to the root of the contract. Where the employer dismisses the employee for refusing to accept the new terms, the employee may claim unfair dismissal if all other eligibility criteria are met.
When considering the fairness of a dismissal in these circumstances, tribunals will look at the full context of the business reorganisation or proposed change. No one relevant factor will be looked at to the exclusion of all others. Some common factors include: the employer’s motives for introducing the changes, whether the employer has undertaken an assessment of the impact of the changes on employees and whether it has considered alternatives to any changes and the employees’ reasons for rejecting the changes. Your employer should therefore consider alternatives (including offering you the full time role), if possible.
Part-time workers have a right to not be treated less favourably than their full-time counterparts. Where it is found that your employer would normally offer a full-time colleague an alternative role in similar circumstances, you may have a claim for ‘less favourable treatment’ if it can be shown that there is no objective justification for not offering you the full-time role. In order to bring a claim, you must be able to identify a full-time colleague doing broadly the same type of work as you, who has been offered an alternative role in similar circumstances e.g. a full-time colleague who was offered a part-time role when his role was required to become part time.
Ultimately, (assuming you meet the relevant eligibility criteria), your employer should consider offering you the full-time role in order to avoid triggering any statutory redundancy obligations and any claims of unfair dismissal and/ or less favourable treatment on the grounds of your part-time status.
*Albert Mould assisted in answering this question.