Been sacked for not being prepared to work full-time

[dippywhentired]

Hi, am writing on behalf of my sister. She has been working 3 days a week for a company since August. A couple of weeks' ago the Director said they wanted her to go full-time as they had underestimated how much work they had. She said she wasn't keen as she is a single mother, has 2 young children and would have difficulty getting them picked up from school 5 days a week and looked after in the holidays (her in-laws help while she's doing her 3 days, ex-H hasn't seen the children for 5 months, his choice and a whole other thread!) She said she would be prepared to work an extra 2 mornings, but they said this was not enough, they want 5 days. They went away to think it over. Today, she was told they will have to let her go. Can they do this as the job was advertised as 3 days a week and she wouldn't have applied for it if it were full-time? Seems very unfair, or does she have no rights as she hasn't been there very long? She is gutted, doesn't know what to do as she will lose tax credits, etc. Any advice much appreciated!

She doesn't have any rights really I'm afraid. If they need more hours and your sister doesn't want to do those hours then that's that really. Because she's only been there a short time it's not a redundancy question or anything. Irritating they didn't assess their needs correctly to start with, I agree, but nothing she can do about that.

Thanks for replying - thought this was probably the case, but she is so upset and am clutching at straws!

I'm not sure. Surely it can't be as simple as them just being able to sack her even though she's only been there a few months?
Is she in any kind of union? if so she should be talking to them urgently.

I suggest she speaks to ACAS here

Does she have an employment contract? What does that say about her hours?

I'm afraid it is that simple Selks. It's a business decision and she can't claim unfair dismissal until she's been there 12 months.

Flowery is right. Selks. You can dismiss for any (non-discriminatory) reason at all in the first 12 months of employment.

It is true that you can "dismiss for any (non-discriminatory) reason" in the first 12 months of employment but this is potentially a discriminatory reason and so the 12 months is not relevant.

The employer is indirectly discriminating against your sister by requiring her to work full time hours, which she is unable to do because of childcare reasons.

Practically: she should write to the director and say that she feels they have discriminated against her and ask to be reinstated on her part time hours or she will consider issuing a claim in the Employment Tribunal for sex discrimination and unfair dismissal.

Good luck with that one.

The claim for unfair dismissal would fail automatically as she has not been with the employer for 12 months.

Decisions to date suggest that a sex discrimination case on this basis will only succeed if you can show that the role can be carried out on a part time basis - see, for example, Chandler v American Airlines. Whilst asking for a full time employee may be discriminatory, the question the tribunal then has to ask is whether this is a proportionate means of achieving a legitimate aim. On the evidence posted I think the tribunal would agree that getting all the work done is a legitimate aim and, since a part time employee is unable to achieve that aim, making the role full time is a proportionate means.

In Chandler v American Airlines they could prove that the job had to be done on a full time basis and could not be done on a job share basis. That would not be the case in the majority of roles - it seems that in this case the employer has not considered any alternative and so would fail to show that dismissal was in fact proportionate. Most indirect sex discrimination cases succeed where the employer failed to consider issues such as job shares.

Actually in Chandler v American Airlines the claim succeeded because the evidence from the employer showed that the job could be achieved on a less than full time basis, albeit not on the hours the claimant wished to work.

Can I refer you to Hardys Hansons plc v Lax [2005] IRLR 726 (another case that was lost by the employer). The employer has to show that the proposal for a full time appointment is justified objectively notwithstanding its discriminatory effect. He does not have to show that no other proposal is possible. This was restated in the decision of the Tribunal in the Chandler case - indeed, the last two sentences are lifted directly from that judgement.

If she proposes a job share and the employer refuses she may have a case unless the employer could provide adequate justification for the refusal. At the moment she has only proposed that she continues part time for 3 days and 2 mornings per week. The employer is entitled to refuse that proposal on the basis that it does not get the work done.

Her employer claims that even working 5 days in the office, unless she does full-time hours, it doesn't give the customer continuity (it is an export company). She thinks they are making excuses to get rid of her as she has heard on the grapevine that a previous employee wants to come back full-time. My sister is still being trained up so it would make no sense for them to get rid f her just before Xmas and have to find someone else suitable, prepared to work full-time, who would then need training. Her manager admitted she hasn't had time to train her properly and she's really stressed by the amount of work she has, so can't see her liking the idea of having to train someone from scratch. makes sense that they want an ex-employee back who knows the job sadly.

The employer has considered the alternative the OP's sister proposed and decided it's not workable. They don't have to even give a reason for dismissal this early but they've explained their problem, offered her the full time hours and considered her alternative. Sounds pretty reasonable to me, although of course upsetting and annoying for the OP's sister.