I employ two members of staff on a job-share basis; both work two-and-a-half days per week. Unfortunately, one is leaving and it will take me a while to find someone suitable to replace them. Can I demand that the remaining employee fills the role full time on a temporary basis or, if we fail to find a replacement, replace her with a full-time employee?
A demand that the remaining part-time employee fills the role full time, even on a temporary basis, is likely to amount to a breach of her employment contract and should be avoided. Any unilateral variation to her contractual hours that you make either without her consent or where her contract does not expressly allow you to make changes (usually on giving her reasonable notice) is likely to be unlawful. Even where the contract expressly allows you to “vary terms and conditions” you should proceed with caution before making changes. This is because employment tribunals tend to construe narrowly an employer’s right to vary the contract where the effect of the change is to the employee’s detriment.
Forcing the employee to work full time could fundamentally undermine her existing contract of employment. It may well prompt an immediate resignation followed by a claim of constructive dismissal. Unless you can show that forcing the employee to work full time was a balanced way of achieving a legitimate business aim, a tribunal is likely to find that she had been unfairly dismissed – leaving your business liable to pay compensation of up to £68,400.
Adopting a policy that requires all of your employees to work full time wouldn’t help either. In the present case, it could expose your business to a claim of indirect sex discrimination, particularly if the employee in question is unable to work full-time hours due to caring responsibilities. Bear in mind that there is no statutory limit on the amount of compensation that may be awarded by a tribunal for unlawful discrimination.
Acting reasonably while following agreed procedures will limit your exposure to tribunal claims. The first thing to do would be to seek your employee’s consent to a temporary change in hours to ensure that the work will be covered while you find a replacement. She may just agree without any objections. However, if she doesn’t and, having made all reasonable efforts to find a replacement, the position remains vacant, you may be left with little option but to issue notice of redundancy to your employee and advertise the position as a full-time role.
However, before making the employee redundant you should make it clear to her that her part-time role is at risk. Arrange a meeting to discuss how redundancy might be avoided (if at all) and offer her any suitable alternative position that may be available. Bear in mind that selecting employees for redundancy because they work part time is unlawful and may lead to a tribunal claim, so anyone else performing a similar role to your employee probably ought to be included in the redundancy selection pool.
Linda Stewart, head of employment, Simpson Millar LLP