A part-time employee has always refused to increase her hours, but the post must now become full-time. Can the employer view this as a redundancy situation? Esther Smith, partner at Thomas Eggar, and Martin Brewer, partner at Mills & Reeve, advise.
We need to confirm details of a job description for a long-term employee who is notoriously difficult. This employee has been payroll and HR database administrator for the past four years. However, a designated HR manager has recently been appointed because HR policies and procedures had fallen behind compliance standard due to the fact that the director, who had been responsible for HR, had not had time to deal with HR issues properly.
The employee works four days per week and part-time (9.15am to 2.45pm) and has refused to increase her hours in the recent past. It has now become imperative that the HR department has more HR administrative assistance and we would like to make the payroll and HR administrator a full-time post with a revised job description.
The HR system covers all our HR and payroll database requirements and there is a lot of crossover of information gathering and data entry for both HR and payroll, so another part-time post would be difficult to incorporate.
Would it be possible to make the part-time post redundant? There are currently no other part-time posts available in the accounts department (which is where the employee began her employment with the company). Have you any suggestions of a way forward?
Esther Smith, partner, Thomas Eggar
It’s difficult to argue whether there is a genuine redundancy situation here, because in reality it is not really true to say that your requirement for someone to do the work for which this lady is employed has diminished because the role has increased rather than decreased.
If you really do have a genuine need for someone to work the additional hours, you should consult with her about this and give her the opportunity to increase her hours, and explain to her that you are going to try to recruit both internally and externally for someone to fill the additional hours.
If you move to get rid of this lady without trying this step you will be faulted. You need to show that it is not possible to fill the other hours with a second person, even if this would cause additional costs to the company. If your recruitment search proves completely unsuccessful then you should again consult with the employee about this and say that you are left with no option but to consider dismissal of her for ‘some other substantial reason’. In order for the dismissal to be fair you would need to explore alternative roles and again give her the option of considering the full-time role.
This is a very simplified explanation, and you should take advice specific to your situation to ensure that the correct procedures, reasoning and documentation are used. Bear in mind, however, that even if you dismiss this lady (which would be for some other substantial reason rather than redundancy) any new full-time recruit may put in a flexible working request in the future.
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
This seems to me to be relatively simple. Your employee is in a redundancy situation as you no longer require a part-time employee. Her part-time job will disappear to be replaced with a full-time job.
So you need to follow a redundancy process which includes warning this employee that you are going to replace her role with a full-time one (place her at risk as it were) and consult with her about that. The consultation must include a discussion about whether you can find someone to job share with the employee and, if not, whether she wants the full-time job as ‘suitable alternative employment’.
If neither of those options are achievable then do consider, in consultation with her, if there is any other role she can undertake for you. Ultimately, if you cannot find anything she will be dismissed as redundant with any appropriate redundancy pay. In implementing this you must take care to follow the statutory dismissal procedure and if in doubt take further advice.
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