Although the numbers of grandparents and other family members who help with childcare...read more
I have been working for my company for 11 years, initially as PA to the shareholders. However, in recent years they have become less operational and I moved to working part time and have taken on a variety of other work, including assisting the new business team. However, a few months ago I was told that I would now report into the new business director directly and work and report to them. I requested a salary increase due to added duties, but they ignored my request until I asked for a meeting with my new line manager with a view to resolving the issue prior to making a formal grievance. Instead of arranging a meeting to discuss this, my employer now tells me that, due to requirements of the business, they are making my role redundant. They have offered me the same role with a few more duties but said it has to be full time which I cannot do as I am a carer for my son who has a mental illness. I also used to work one day a week at home. So I am being made redundant and a colleague is taking over the role. Is this fair?
To be a fair dismissal, your employer must dismiss you for a fair reason and also have followed a fair and reasonable process. Here there may be two potentially fair reasons. The first is redundancy and a genuine redundancy situation requires that one or more of the following circumstances exist: a reduced need for work to be done (possibly as a result of a fall in demand), a reduction in the number of people needed to do the work (i.e as a result of a new system of work), or the closure of a business in a particular location. It generally requires a reduction in the number of employees.
In your case, you mention that your role will continue, but with additional duties and on a full-time basis. If this is the product of your employer consolidating two existing separate roles into one, one of which is yours, then it may well be a genuine redundancy. If not, there does not appear to be any reduction in work or the need for people to do your role, but an increase and therefore this would not be a redundancy.
However, the second potentially fair reason is a business reorganisation. A business reorganisation occurs when a business decides to do an internal restructure and whilst there are the same number of roles they are divided up in different ways. Sometimes existing employees do not have the skills to fulfil any of the new roles or the business decides that a previous part time role needs to go to full time and if you are unable to do this then you may be fairly dismissed.
To succeed in showing this was a fair dismissal for business re-organisation your employer would be expected to show that their decision to change your role from part time to full time has been made for sound business reasons. This does not necessarily mean that the change is required in order to save the company from closure or anything quite that dramatic, but you would expect there to be a reasonable business rationale. If your employer made this decision simply because you had asked for a pay rise, or because you had planned to submit a grievance then this may be an unfair dismissal.
It would also be an unfair dismissal, and potentially discriminatory, if the reason they are changing your role is because of your part-time status. Employers cannot subject an employee to a detriment (such as dismissing them) simply because of their part-time status.
Whilst your employer is under no obligation to make reasonable adjustments to your role because of your son’s disability, if they subject you to a detriment on the grounds of your son’s disability then this can be disability discrimination – so, for instance, if you were taking time off to deal with your son’s illness and they decided to change your role to something they knew you could not do as a result.
Even though it could be argued that by asking you to work full time this would adversely affect those who care for disabled relatives (disability discrimination) and adversely affect mothers, who have the majority of the childcare responsibilities (sex discrimination), provided your employer has a good reason for wanting to make this change and is prepared to consider job share if this would be viable, then it is likely that they could objectively justify their decision and so not be found to have acted in a discriminatory way.
Whilst it is very unlikely your employer would ever explicitly admit that they have made these changes because you are part time or because you have a disabled son, if they fail to provide an adequate explanation then a Tribunal can draw ‘inferences’ that this is the case .
Regardless of whether this change has been brought about by a redundancy situation or business reorganisation, your employer should have engaged in consultation with you before a final decision is made to go ahead. Once the decision has been made they would be obliged to consult with you about how the changes would impact upon your employment and any alternatives open to you. At this stage you should have been given an opportunity to make suggestions that may have helped to avoid your dismissal, such as job share.
Even if there is a genuine need for the role to be full time, your employer could have considered the option that you could have continued in your employment as part of a job share.
Your employer would not be obliged to agree to a proposal such as a job share, but if they failed to engage in meaningful consultation, and failed to even consider this as an option, then their decision could potentially be unfair.