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Can we dismiss part-timers as part of redundancy process?

Barristers Michael Salter and Chris Bryden advise on a tricky practice problem relating to part-timers' employment rights and redundancy.

Barristers Michael Salter and Chris Bryden advise on a tricky practice problem relating to part-timers' employment rights and redundancy.

THE SITUATION

The practice employs some of its staff on a job share basis. We are going through a period of redundancy. The job-sharers say we cannot dismiss them as part of this process. Is this right?

THE ADVICE

The short answer to this question is: no, they are not right. They, like every employee, can be dismissed.

However this confusion may have come about from a misunderstanding over other rights that these employees have.

As job sharers, and therefore part-time workers, such employees are protected from any less favourable treatment on the grounds of their part-time status. In short, therefore, they must be treated in the same way as full-time workers.

Therefore the Practice, when carrying out the exercise of considering who is to be made redundant, must not consider as one of the factors the fact that some employees are part-timers and so should, could, or must be dismissed first.

In a redundancy situation however, factors that can be objectively verified can be used. So, for instance, factors such as qualifications, experience and disciplinary record are all legitimate. And a previous Legal Lesson gave a broad outline of the procedures to follow when considering redundancies.

Further, the Practice must ensure that the part-timers it retains are not employed under contracts of employment that are less favourable than those of their full time compatriots.

Generally, a good starting point (but by no means the ending point when assessing whether there has been less favourable treatment), is to apply a pro-rata principle.

Thus, is the pay that the part-timer gets, pro-rata,, no less favourable than that the full-timer receives?

Terms and conditions

This prohibition on less favourable treatment applies to all of the terms of the employee's contract. This would include, for instance, the rate of pay; overtime; access to training; benefits such as health insurance; holidays and annual leave.

As with some other forms of discrimination, less favourable treatment of part-time workers can be justified in law, provided that the reasoning behind the less favourable treatment is to achieve a legitimate business aim, and can be said to be both necessary and appropriate to achieving that aim.

Recently however the law has changed. Traditionally the part time status of the worker had to be the sole reason for the less favourable treatment for such an employee to successfully bring a claim at the Employment Tribunal.

Therefore if the employer could show another reason for the treatment, then the Claimant's claim would fail.

Now, however (and in line with the test for the other forms of discrimination such as race and sex discrimination) if the part-time status of the employee is part of the reason for the less favourable treatment, they will succeed.

Loophole closed

This change is potentially of huge importance to those businesses that employ full timers and part timers, as it will not be open to the employer to argue that, because they treat some part-timers proportionately in the same way as a full timer, they do not have to treat all of them equally.

In short, the advice to the Practice would be to reassess all part-time workers and ensure they are on proportionately the same terms and conditions as the full timers.

However, do not think that because these employees are part-time they cannot be dismissed -the Practice must simply ensure a fair, objective set of criteria which are used, that do not consider the part-time status of the employees.

Michael Salter and Chris Bryden are barristers at 2 Gray's Inn Square Chambers: www.2gis.co.uk Michael Salter is also able to accept instructions directly from readrs of Pulse.

Please visit www.michaelsalter.net for guidance on how to instruct him. Legal points are provided for discussion only and are given without obligation. For specific legal advice consult your solicitor or contact Michael Salter via his website

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