Is this constructive dismissal

[Youhadmeathello1]

I’ve worked for the same company for 11 years. At the start I was full time but that then changed and for the last 8 years I have worked 2 days a week. Today they have told me that they want me to go to full time hours. This doesn’t work for me. Can anyone advise me as to where I stand?

What did they say when you told them you don't want to work full time?

Did you contract actually change when you went pt? Does it say anything about adjusting hours to meet business needs?

Did you contract actually change when you went pt?

8 years would constitute custom and practice of it didn’t (and therefore be considered contractual now).

If you say no op they can make you redundant from your role. As they no longer need a part time employee and it would not work for them to have two job sharing. They can do a single person redundancy

I don’t think it’s constructive dismissal. If you say no they will move to redundancy.

I don't think it is. My understanding is they have no need for a part time position and have a need for a full time position, so they're giving you the option of increasing your hours.
As roles get made redundant, not people, they can make the part time role redundant.

You might find that you have legal cover on one of your insurance policies, particularly contents insurance. I would give them a call if you have it - mine covers employment advice - as well as all sorts of other things. A lot of people don't realise they're covered.

I think you mean Unfair Dismissal OP.

Constructive is when you resign because you feel that you genuinely had no choice. (Fewer than 5% of CD cases brought to tribunal win.)

As long as they follow the correct redundancy process this would not be likely to be an unfair dismissal case.

As above, this sounds more like a potential redundancy situation, not constructive dismissal. CD would be them making your life/ job so unbearable that you had no option but to resign.

It's not a redundancy situation. A redundancy is where the need for the type of work the employee is doing has ceased or diminished. That doesn't sound like it is the case at all - it sounds like an increase in need, not a reduction.

However that doesn't mean you can simply refuse. That should be your starting point, as the starting point is that your consent is needed in order to change your terms and conditions.

But if you refuse and they have a genuine business need for the increased hours, and they have consulted you and explored other options (such as a job share or similar) and none of them are suitable, they could dismiss you for Some Other Substantial Reason, and it is unlikely you'd win a claim.

It's a risky thing for them to do, but if they have a really good reason and they can demonstrate this, and can demonstrate that they've tried their best to solve it another way, you'd struggle to argue the decision was unfair.

Are there other options they could consider?

It is a redundancy situation, because the need for someone doing two days a week has ceased. It is not just about the type of work, it’s also about how long you need the employee for.

Arguing they can dismiss her for another reason is silly. They can simply move to a single person redundancy as they no longer have a need for a part time employee in thr role.

Could you suggest a job share (and constructively help with recruitment) so the role is covered full time without you having to do it (or leave)?

Have you had regular performance reviews / appraisals and is your performance meeting all objectives?

It is a redundancy situation, because the need for someone doing two days a week has ceased.

Wrong. The Employment Rights Act 1996 is very clear as to the definition of a redundancy. It is that the requirement for employees to carry out work of a particular kind has diminished. If they used to need a bottle washer for 16 hours a week and they now need a bottle washer for 40 hours a week the requirement for bottle washers has clearly not diminished. It has increased.

On the OP's description this is definitely not a redundancy situation.

It has diminished, because the type of work she does is part time. The law is not so restrictive as to preclude this, it is not wrong, a business restructures all the time, this is very common.

No, it has not diminished. Please stop contradicting people who actually know the law.

Being part time is not a "kind of work". See Johnson v Nottinghamshire Combined Police Authority. This was the case in which the Court of Appeal decided that part-time work is not a "kind of work". Unless parliament chooses to change the law, that remains the position.

Yes, the business can restructure and, if the OP refuses to agree to go full time, they may choose to dismiss her. That is a perfectly valid, albeit somewhat risky, thing for them to do. But it is NOT a redundancy.

For a recent decision (November 2019), see McBride v Capita Customer Management Ltd. Ms McBride was dismissed when her employer decided that a team of one full time and two part time employees needed to become three full time employees. Her employer argued that this was a redundancy. The Tribunal decided that, "there was no diminution in the amount of work. In fact it appears that there was likely to have been more work as it now required three fulltime employees to do it. In so far as the respondent is contending that part-time work and fulltime work represent two different types of work, it is well established that this is not what the statute intended"

So the courts are clear that you are wrong. Flowery is right. This is not a redundancy situation.

I’m an employment lawyer and I agree with @flowery and @prh47bridge

It is absolutely not a redundancy situation.

If your employer wants to dismiss you OP for a refusal to increase hours then they could potentially do that under an SOSR dismissal - but for that to be reasonable they’d have to try and find a job share or justify why the role isn’t suitable for that.

Alternatively they could try and change your contract and dismiss you if you refuse - which would potentially give you an unfair dismissal claim.

Simply trying to impose a change in hours on you would indeed potentially give you grounds for constructive dismissal (or probably unfair dismissal in reality - as the change is so substantial to your role that you could argue you’ve been legally dismissed)

prh47bridge
Not to hijack, but what would be the case if the nature of the work changed as well. For example Person A did X part time, but work wanted a full time appointment doing X duties plus other things that weren't A's original area?Could work justifiably say that A needed to increase their hours or face redundancy?

@LolaSmiles - There is no simple answer to that, I'm afraid. It depends on how much the nature of the work changed. If the court regards it as merely fine tuning it will not be a redundancy. If the new role is completely different to the old role it will be a redundancy. The tipping point is somewhere between those two extremes. And, in the situation you describe, the tribunal would also potentially be interested in whether the business has a good justification for combining these two roles into a single full-time role rather than having them as two part-time roles.

Your not as risk of redundancy until they 'restructure'... Watch out for a string of roles with fancy new titles dripping in over a period of time .... That'll be a clue. The ones that get them will stay.

It’s not unheard of for an employer to tactically use ‘redundancy’ during a restructuring even if work hasn’t ceased or diminished, and it’s just that it has been rearranged or changed in some way and the person previously doing it will no longer be able to do so. That is technically unlawful but is sometimes a strategically sensible decision. This is because redundancy is a familiar concept to employees and involves familiar language, it feels less of a personal decision, and they get some money. All of those factors make it less likely an employee will challenge the dismissal. Getting dismissed for SOSR with no entitlement to redundancy might be technical the lawful approach but will not be received nearly as well.

Redundancy ‘feels’ safer all round- to the employees but also to HR practitioners, many of whom are (not unreasonably) not familiar or confident with SOSR, so we gravitate towards it as a reason for dismissal even when it doesn’t apply at all.

Sometimes in a restructuring it’s arguable either way whether it could be redundancy or not, and as employees would be better off under redundancy, choosing that route often makes sense.

However, making someone ‘redundant’ because work levels have increased and the person can’t or doesn’t want to increase their hours doesn’t fit into that category at all and would be quite easily challenged as being unfair dismissal and quite possibly less favourable treatment under part time Regs as well.

Speak to ACAS.

The employer usually need to consult first before making a change to your contract.

Also, if you work part-time because you have caring duties, a health condition or a disability then they could be treating you unfairly by asking you to change your hours.

Try suggesting a jobshare.

As others have said this is not redundancy situation. The need for your job has not disappeared, it has increased...