I recently posted on the newly expanded right to request flexible working, but this article looks at the opposite situation of when you want a part-time employee to work full-time. Before you do so, ask yourself a few simple questions:
What is the real reason for the change?
Is it because:
- there are genuine operational requirements that necessitate full-time cover?
- the employee in question is not performing well?
- the organisation or unit has a bias against part-time employees?
Sometimes the problem is really the employee themselves, not the fact that they work part-time. Tactically, it may be better to confront performance issues head-on rather than ask the employee to make a change that will give them cause for complaint. Having said that, it is also true that sometimes employers do not make enough effort to find ways of adjusting to or complementing part-time arrangements to ensure efficiency and they are too ready to tell employees that part-time isn’t working.
Can you rely on a “flexibility” clause in the employment contract to enforce the request?
The sort of clauses I mean are those that say something like: we can make you work different hours if we want to; or we can make you do different duties if we want to.
It is very difficult to rely on clauses such as these to engineer a change from part-time to full-time working. Usually, they are designed to offer flexibility in different areas and don’t really fit this situation.
If you are lucky enough to have an appropriate flexibility clause, it is well-established law that you must act reasonably in invoking it – imposing change unilaterally can create a risk of constructive dismissal. This means examining alternatives with the employee (e.g. job shares, different hours) and taking into account the impact of the change on their personal situation.
Is the request discriminatory?
Where the employee is female, you risk being guilty of indirect sex discrimination:
- by requiring them to work full-time you are imposing a provision, criterion or practice (PCP);
- the majority of part-time employees are female (according to government statistics);
- many choose part-time working because of childcare commitments; and
- therefore, they find it more difficult than men to work full-time because of their gender.
You can meet a claim of indirect sex discrimination with a defence of justification. For this, you need to show that imposing the PCP was a proportionate means of achieving a legitimate aim. This goes back to our first question as, in practice, justification requires you to demonstrate that part-time working was not effective in meeting the demands of the organisation and that there were no alternative arrangements that you could equally well have implemented that would allowed the employee to continue to work part-time e.g. a job share, change of hours, or change of duties.
The risk of discrimination on the grounds of part-time status is often low in this situation because of the difficulties for the employee in identifying a full-time comparator.