Two part-time employees both work mornings and their employer wants to change the rota so there is cover in the afternoons; but both employees refuse to change their hours. Esther Smith, partner at Thomas Eggar, and Martin Brewer, partner at Mills & Reeve, advise on whether this is a redundancy situation.

The question:

I have started a formal consultation with two colleagues who both work 9am to 1pm. This means the branch is left short in the afternoon and the proposal is to move one colleague’s hours from 1pm to 5pm.

We have suggested options around moving to another branch and working on a rota system so they work two weeks of mornings and two of afternoons but both are stating they won’t change as they need to be able to collect their children from school. There is no imminent change to these arrangements as the children are both at primary school.

One has 5 years’ and one has 8 years’ service; signed contracts are not in existence for either, although the employee handbook does state we reserve the right to change rotas from time to time to meet the needs of the business.

In the past, after consultation, I have issued new contracts and if the person has not been willing to accept the change, have terminated with notice, but someone has said to me this may be a redundancy situation and so now I am confused – any advice on the way forward would be much appreciated.

Legal advice:

Esther Smith, partner, Thomas Eggar

Technically this probably is a redundancy situation as your requirement for someone to carry out this role in the mornings has reduced – you have two but only need one – although you have alternative employment to offer the casualty by way of the same job in the afternoons.

There is a lot to be said for addressing this as redundancy, as it gives you a formal process to follow, which is sometimes easier to work with and also gives the employee the potential for some financial payment at the end of employment if they don’t accept the alternative employment offered.

Clearly you have consulted with them already about the need to change the hours to suit the business needs and neither of them have agreed to this change. I think you should advise them that as you have not been able to agree something suitable with them you will need to move a formal redundancy process.

The first stage of this process will be to determine who stays in the morning, which you should do on an objective assessment, which is not really ideal as it means deciding who is the worst performer and moving her to the afternoons. Alternatively you may decide to use their length of service as the determining factor, although this could in theory be challenged under the age discrimination provisions.

Whoever is the casualty would then be offered the afternoon role as an alternative to being made redundant. Clearly the role is suitable in as much as the duties are the same, but the question is whether the employee’s refusal of that role is reasonable. If it is reasonable, and this is a subjective test based on the employee’s individual circumstances, then they would get their redundancy pay and notice.

If their refusal is unreasonable then you could dismiss on notice without paying redundancy. However in this case, on the limited information available, if their refusal is based on their own childcare arrangements it is unlikely that their refusal would be deemed to be unreasonable.

The employee may challenge the dismissal as unfair, but if you have paid notice and redundancy your only liability, should they succeed in their claim, would be for compensation, but they do have a duty to mitigate their losses by securing other work.

The alternative is to continue down the route you have started and either dismiss and offer re-engagement or force the new terms and wait for a resignation. In this case, should you dismiss and the employee sues, you need to be able to defend the dismissal on the grounds of some other substantial reason justifying dismissal, which may not be as easy as persuading a tribunal that you had a redundancy situation in terms of being overstaffed in the mornings.

This situation is not a straightforward one and there are pros and cons to each approach, so you should take specific expert advice before taking any action to dismiss.

Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information please visit Thomas Eggar.

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Martin Brewer, partner and employment law specialist, Mills & Reeve

Effectively you have what appears to be a fairly simple issue, which is that there is a business need to cover the office in the afternoon and you need one or both of these employees to do this either all of the time or on a rotating basis.

You don’t say why you now need to change their hours. How has the branch been covered to date? Can you find anyone else to do the 1pm to 5pm slot?

Assuming you do have a real need to cover the branch with one or a combination of both of these individuals, and bearing in mind you have no written contracts in place (shame on you), what is to be done?

If the handbook is effectively the contract and it’s clear that you can vary the rotas, then that is a flexibility you can exercise provided that in so doing you act reasonably (for example by giving a reasonable period of notice to allow the employees to adjust) and you don’t make it impossible for the employee to perform the new role.

The difficulty in this case is the childcare aspect. In other words, what the employees seem to be saying is that they are simply unable to comply with your request and it follows that if you imposed a change by ostensibly lawfully varying the rota, you would be doing so knowing that they cannot comply. That is not particularly reasonable behaviour and could lead to an argument that you have destroyed trust and confidence.

You ask whether this is a redundancy situation and in effect you have a choice. In a case just reported the Court of Appeal has said, in relation to the closure of a part of a business and a mobility clause, that the employer was entitled to rely on the mobility clause if the employer makes it clear that it is invoking that mobility clause and not following a redundancy procedure.

I see no reason why this approach cannot be used in your circumstances to cover a change in rota where you have a contractual right to invoke that change (although I cannot tell you whether you do have that right without a lot more information).

You should also be aware that if you try to impose this change you could face a sex discrimination argument that in treating these employees ostensibly like everyone else, by requiring them to be flexible and work in the afternoons, you are in fact discriminating against them as they bear the childcare responsibility (see the case of London Underground v Edwards on this point). So tread carefully.

Practically, the safest option for you may in fact be to opt for redundancy. You could, on the face of it, argue that in the branch you have a diminished requirement for morning-only employees. This gives you a pool of two. You would consult and look for alternative options (as you describe in your question) and if necessary alternative employment. If none of that succeeds you will objectively select one employee to be dismissed as redundant. You must follow the statutory minimum dismissal procedure if you go down this route.

Martin Brewer can be contacted at: martin.brewer@mills-reeve.com

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