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Topic: Contractual clauses

job-share clause
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Job-share clause

Job-share clause

If two employees share a full-time role on a job-share basis, it’s worth inserting our job-share clause into both of their contracts of employment. Be aware that if one job sharer leaves, you can’t just dismiss the other one.

Legal position

A job share occurs where two (or possibly more) employees share the duties and responsibilities of one full-time position. There are a number of ways in which the post might be split, such as the sharers both working a part of each day (for example, one works mornings and the other works afternoons), or they might work split weeks (for example, both work 2.5 days per week), or they might even work alternate weeks. But the essence of the arrangement is that they’re carrying out the duties of the same full-time post, albeit at different times. There are no specific legal provisions covering job-share arrangements but as the job sharers are part-time employees, they are covered by the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 and therefore they should not be treated less favourably than your comparable full-timers (unless the less favourable treatment can be objectively justified). This means they should get the same salary and benefits package calculated on a pro rata basis.

Operational issues

As well as sorting out the number and arrangement of hours to be worked, you’ll also need to think about how the work will be shared between the job sharers, whether they’ll share office space/equipment and how work will be handed over to ensure a seamless transition for your clients and customers, i.e. how they will communicate with each other and their line managers. You’ll also need to think about whether you’re happy for them to take annual leave at the same time or not and whether you may want them to work additional hours from time to time to cover their job-share partner’s short-term absences. Our Job-Share Clause makes clear the nature of the job-share arrangement and it provides that they must participate in a full handover session with the other job sharer to ensure effective communication. We’ve also included optional provisions dealing with taking annual leave at the same time and the requirement (or not) to work additional hours to cover the other’s absences.

Departure of one job sharer

What happens to the other job sharer if one job sharer resigns or is dismissed? Our clause provides that you’ll first make reasonable attempts to secure a replacement but if you’re unable to do so, you reserve the right to require the job sharer to step up to full-time hours. It also provides that you’ll first see if you can redeploy the job sharer, with their agreement, into another job-share position. However, ultimately, it goes on to state that the last resort may have to be dismissal. It’s important to bear in mind here that you can’t contract out of the employee’s right to claim unfair dismissal. So the fact you’ve contractually provided for the possibility of dismissal doesn’t mean it will make it a fair dismissal if you then do dismiss. Any dismissal in these circumstances will be subject to the normal test of fairness. Essentially, you’ll need to demonstrate you did everything you could to recruit a replacement, to redeploy the job sharer, to give them the opportunity to go full time etc. and that the post could not be continued on a part-time basis with just the one job sharer. Dismissal needs to be the absolutely last option and as always there needs to be full consultation with the employee throughout the process.

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