Handling requests for flexible working

Written by: HTU | Published:

What are the legal and practical considerations for primary school headteachers when considering requests for flexible working? Employment law expert Vanessa Latham explains

It is a well rehearsed fact that the vast majority of primary school teachers in the UK are female. Data from the Department for Education shows that in November 2011, 86 per cent of qualified primary school teachers in the UK were women and 14 per cent men.

A significant proportion of teachers are parents and while, in an ideal society, the responsibilities of parenting would be shared equally between partners, the reality in the UK remains that women bear a disproportionate share of the childcare responsibilities. Our ageing population also means that many are not only juggling work and children but also caring for elderly relatives.

Accordingly, there is a particularly high demand for flexible working arrangements among primary school staff, when compared with other professions, and the trend is growing. In 2000, there were 174,700 full-time teachers and 16,700 part-time. By 2011, the number of full-time teachers had fallen to 158,000 while part-time teachers had risen to 31,900.

If flexible working is on the increase, what are the implications for schools? Happy productive teachers, good staff retention and savings on recruitment are some of the positives. However, allocating resources within the annual budget is difficult enough, without the added complication of extra staff, additional administration and duplicated costs. Ordinary tasks, such as organising staff meetings can become a challenge. With this in mind, what are the legal and practical considerations that will apply when schools are asked to arrange flexible working for their staff?



The legal side

The decision on when to offer flexible working will never be black and white. Headteachers will need to consider the individual circumstances of each instance. Nevertheless, there are certain guidelines that employers need to be aware of. Staff have a statutory right to request a flexible working pattern if they:

- Are an employee (agency workers excepted).

- Have worked for their employer for 26 weeks continuously before applying.

- Have not made another application to work flexibly under the right during the past 12 months.

If the above conditions are satisfied, employees will have the statutory right to ask if they:

- Have or expect to have parental responsibility of a child aged under 17.

- Have or expect to have parental responsibility of a disabled child under 18 who receives Disability Living Allowance (DLA).

- Are the parent/guardian/special guardian/foster parent/private foster carer or are the holder of a residence order or the spouse, partner or civil partner of one of these and are applying to care for the child.

- Are a carer who cares, or expects to be caring for an adult who is a spouse, partner, civil partner or relative; or who although not related to you, lives at the same address as you.



The procedure

The procedure for handling requests is as follows.

Within 28 days of a request in writing stating the change requested and the likely impact on the organisation: Employer must arrange to meet with the employee in order to discuss the application. The employee is entitled to be accompanied by a worker employed by the same employer at the meeting.

Within 14 days of meeting: Employer must write to the employee either to agree to the new work pattern and set a start date or to provide grounds for the rejection of the application and set out the appeal procedure.

Within 14 days of rejection (where applicable): Employee can appeal.

Within 28 days of the meeting: Employer must deliver appeal decision (where applicable).



On what basis should schools grant requests?

Contrary to popular belief, there is no right to flexible working, only the right to have your request properly considered. The general rule is that schools should grant requests on business grounds, rather than the employee’s personal circumstances.

Any headteacher’s priority must be to the welfare and educational needs of their pupils. It is very important to remember that any new working arrangement will be a permanent change of the teacher’s contract, which cannot then be changed unilaterally. Schools may be able to agree a trial period with the teacher, but cannot insist on a trial under the statutory provisions.



When can schools refuse requests?

On Procedural Grounds: A request may be refused because the employee is not eligible, or fails to comply with the procedure. Headteachers should be aware, however, that rejecting an application on purely technical grounds may lead to more serious and costly claims for sex discrimination, or for constructive dismissal.

In any case, employees can simply make another request, as any procedurally flawed request will not count for the prohibition on resubmitting requests within 12 months. It is not recommended that requests be rejected on procedural grounds alone.

On Substantive Grounds (following an initial meeting): There are eight substantive grounds for rejecting a request. Only these grounds may be raised as reasons for rejection.

1. The burden of additional costs.

2. Detrimental effect on ability to meet customer demand.

3. Inability to re-organise work among existing staff.

4. Inability to recruit additional staff.

5. Detrimental impact on quality.

6. Detrimental impact on performance.

7. Insufficiency of work during the periods the employee proposes to work.

8. Planned structural changes.

In selecting the ground for refusal the test is a subjective one on the part of the employer. As long as you can show you reasonably believed it would have the impact set out above, that should be sufficient.



When should schools allow an appeal?

Schools must hear all appeals, but the form of the appeal meeting is not prescribed, and can simply be a straightforward discussion. If possible, the appeal should be heard by someone who was not previously involved in the initial process. A school governor would be an appropriate person.



Sex discrimination – the real issue.

Employment Tribunal awards for flexible working requests are (relatively) low. The real issue for schools to watch is sex discrimination, which is generally much more costly, in terms both of damages and of reputation. There have been very few cases brought under the right to request flexible working which have not also involved a claim of direct or indirect sex discrimination.

Tribunals have in the past noted that women are more likely than men to be single parents caring for children. This observation has sometimes (though not always) led to the conclusion that a policy requiring that a job be performed full-time, rather than part-time, would have a disproportionate impact on women and is discriminatory.

The employment tribunal will need to be satisfied that the requirement to work full-time is “objectively justified”. Valid concerns about the interests of pupils could well provide such justification.



If you grant it to one teacher, are all entitled?

There is no direct case law on this question, but it would seem that a wave of requests could be rejected on the basis of one of the eight legitimate grounds for rejecting requests. For example, it might impose unreasonable additional costs; it may not be possible to re-organise work among existing staff, or to recruit additional staff; it may become detrimental to the quality and performance of the primary school.

As set out above, granting a request is a permanent contractual change so you cannot go back on previous agreements to accommodate a subsequent one. Having said that consistency in dealing with staff is important not only for legal reasons, but also to maintain morale and a co-operative working environment. The most straightforward and effective way to ensure consistency is by recording requests and processing each request in the same way.

It is of course conceivable that inconsistent decisions may be necessary. Where it is unavoidable, the employer should explain the inconsistency (in the example given, the organisational capacity for flexible working may have been reached after the first applicant was granted flexible working).



The practical side

Schools should have a clear policy in place. Flexible working arrangements require a great degree of co-operation, communication and forward-planning. Inevitably, however, the decision on flexible working is likely to depend on the circumstances of individual requests. Any policy that broadly protected the school’s right to reject requests, in accordance with the eight reasons listed, should offer primary schools adequate protection.



Practical guidance on handling a request

Follow the procedure: The statutory procedure is highly prescriptive, but it is at least clear. When a request is received, the employer must keep to the time limits, bearing in mind that they can be extended if both parties agree. Having a system established in advance should help ensure that requests are dealt with promptly.

Maintain records on requests: Schools should obtain and keep proper diversity information. Failing to monitor the proportions of different groups (by age, sex, race, disability etc) within the workforce, thereby failing to adequately record the respective needs and treatment of those groups will inevitably undermine a claim for discrimination.

Costs won’t always trump: Cost may be a legitimate concern for all schools in the current climate, but the employment tribunal has indicated that employers will have to put up with a certain level of cost and inefficiency for the sake of improving family-friendly policies and practices.

Ultimately, a policy which puts a particular group at a disadvantage, and yet cannot be objectively justified, would be far more costly than the costs of a flexible working policy. Some employees may have a stronger claim against an employer for a rejection of their request so employers receiving requests from several employees working in one department for example, will need to proceed cautiously in weighing them up against each other.



Conclusion

The right to request flexible working throws up complex challenges for headteachers. Schools with established procedures in place are unlikely to be caught out and should not be afraid to turn down requests if they are incompatible with the needs of pupils.

The real danger, which usually goes hand-in-hand with requests for flexible working, is that of sex discrimination claims. Schools that take a pragmatic, consistent and open approach to dealing with staff are likely to significantly minimise their risk.



• Vanessa Latham is an employment partner at law firm Berrymans Lace Mawer LLP. Email vanessa.latham@blm-law.com


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