An employer plans to make redundancies and is considering making their part-time worker redundant, rather than the full-time employees. Martin Brewer and Esther Smith advise on following a fair procedure.
The question:
We are looking at restructuring our field staff. We currently have two full-time and one part-time staff covering all of the UK. We are looking at making one person redundant. Currently, we have one full-time head covering the north, one full-time head covering the south west and the part-time head covering the south east.
We are moving to two areas, north and south. The existing north position would take some of the old SE and SW territory. The remaining position, south, would be the old SE & SW together – less the area now in the north.
That would give us three people and two full-time positions. Is it reasonable to make the part-time worker redundant on the basis of location and that they couldn’t manage this new area as a part-time worker? Do we need to offer them the opportunity to relocate at their expense and to transfer to full-time if they wish?
Legal advice:
Martin Brewer, partner, Mills & Reeve
You need to follow a fair redundancy procedure. That means looking at the correct pool from which you will be selecting the redundant employee. It seems clear to me that you have a pool of three.
The fact is that you require two full time jobs to be done. Query whether that requires two full time employees. You must consider whether you could you operate with one full time and two part time, or even four part time staff? You may say not, but you must think about this and if you decide you cannot operate the new structure with part time staff you will need to be able to justify that decision.
You should not assume your part timer won’t go full time or indeed re-locate, hence it is very dangerous just to limit your pool to the part timer. This will very likely be a breach of the Part Time Workers regulations. With regards to relocation, yes, if they want the role, are suitable and better than at least one of the other two employees, relocation may be necessary. However, unless your contract or relevant policy says otherwise you are not obliged to pay someone to relocate.
Your next step will be a selection process based on objectively justifiable and measurable criteria. Part time status is not a selection criterion.
Martin Brewer can be contacted at martin.brewer@mills-reeve.com . For further information, please visit Mills & Reeve.
* * *
Esther Smith, partner, Thomas Eggar
From the description of what is happening with the territories, it would appear much more sensible to put all three employees at risk in one pool and select for the two on going jobs. To make the part time employee redundant purely on the basis of their part time status would be likely to give rise to a claim for less favourable treatment on the basis of part time status, which is protected in law, and unfair dismissal. Both the SE and SW people seem to be loosing parts of their role to the N territory and therefore we should be treating both Southern employees the same.
Therefore we should be pooling either all three together or pooling the two Southern employees and assessing them against objective selection criteria before deciding who to offer the on going job to. If the part time employee is the best candidate but doesn’t want to work full time, we should consider a part time working request and only reject it if there are good grounds to do so. It may well be that the other Southern employee is able and willing to job share with the other part time employee and this would then fill the two full time posts without losing anyone, and without having to pay out redundancy and notice.
Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information, please visit Thomas Eggar.
