Should employees be given more rights on when and where they work in light of the Covid...read more
I returned to work after maternity leave a few years ago and requested flexible working, which was agreed and I went part time. Not long after the company I work for underwent a restructure and created some senior full time roles and I applied successfully for one on a part-time job share basis. Just under two years into this role the company is restructuring again and they are proposing to reduce the roles to three full-time roles. We are currently in consultation, but we have not yet been given the new job descriptions. My job share partner is unsure they want to apply for any of the positions. HR has given me contradictory advice on my rights. If I can’t continue to work part time, am I automatically redundant? Also, if my colleague does apply, but they decide one of us is unsuitable [we are both treated as two part-time roles], does this mean the other person is automatically unsuccessful? My colleague is less qualified than all of us and I have a feeling my managers consider the job share too complicated to manage.
Your employer should consult with you about its proposals for fewer people doing the tasks you currently perform and to change the way tasks will be done in the future. If they go ahead with this plan, this could be a genuine redundancy situation or in the alternative, a genuine restructuring of the team. Both of these (redundancy and restructuring) are potentially fair reasons for dismissal and your employer must follow a fair procedure if a resulting dismissal is to be potentially fair.
A fair procedure would entail the business consulting in a meaningful way with you, considering ways of avoiding the proposed redundancies and if that was not possible, telling you about any suitable alternative roles within its own business or that of associated companies. If the job is different to the one you are doing, either in content or hours, then you would be entitled legally to a four week trial period. If you unreasonably refuse a suitable alternative then you may forfeit your redundancy payment, but the test is a subjective one i.e. suitable for you and so they would find it very hard to suggest that forcing you to work full time when you have childcare responsibilities is a suitable alternative for you.
As a part-time employee, you are protected legally from being treated less favourably to comparable full-time employees. This means you have the same right as your full time colleagues to apply for the new roles and your application should not be rejected purely because you are currently working on a part-time basis.
The business cannot refuse to consider one of the roles being done on a job share basis, but there may be good business reason for them ultimately not agreeing, depending on what the new job descriptions look like and the tasks required in the role. However, it will be harder for them to say that something that has been working well for a couple of years now does not. If your colleague does not want to apply or is not selected, then they may say that finding someone working their hours is more difficult. You could propose different splits which might make it easier to find the other ‘half’ of your job share.
Regardless of what your current job share colleague does, you can apply for the new role on a part-time basis. The business should give proper consideration to your request. If your application is successful, the business will deal with any associated job sharing or redeployment issues.
To insist that a role is done full time might potentially be indirect sex discrimination as it affects more women than men and women are recognised as having the majority of the childcare responsibilities. However, your employer can have a defence called ‘objective justification’ if they can show this is a proportionate way of achieving what they need to in the business. Given that you have been doing this on a part-time contract for some time, this becomes slightly more difficult for them to argue but not impossible.
You may be able to alleviate their concerns, for example, by agreeing to work compressed hours. If this is not possible and there is no suitable alternative employment for you, you will be made redundant and will be entitled to a redundancy payment calculated on your age, your years of service and weekly pay capped at £479 per week unless your employer enhances this.
If your colleague unsuccessfully applies for the role on a part-time basis, your application should not be rejected automatically. Both applications should be treated fairly and independently of one another.
I suggest that you engage fully with this consultation process, ask the company to provide full details of the new roles as soon as possible and ask the business to extend the consultation period so you have sufficient time to consider and interview for the new roles. Do not be afraid to suggest an alternative structure and ask them to consider it. Consider too whether you are willing to work on a full-time basis if the business is unable to accommodate part-time working for commercial reasons and whether there are any other team members who are interested in job sharing with you.