Is flexible working really an option in schools?

Key legal considerations for schools and academy trusts.

It is easy to point to the barriers to increasing flexible working in schools. Timetabling, particularly at secondary level, has become ever more complex in recent years. As staff numbers and non-contact time have been squeezed, options for flexible working may well seem to have diminished rather than increased.  With unprecedented demands on school budgets, the additional staff costs of some flexible arrangements, such as job-sharing, may also now be more likely to be seen as an avoidable extra.

Technology enabling remote and home working has been revolutionary in increasing flexible working options in many sectors since the Covid-19 pandemic. But can these really have a long term impact for student-facing roles, where being present in the room with pupils is largely non-negotiable?

Flexibility is the future

Despite the current economic pressures on employers, more flexible working is still very much the direction of travel across all sectors.

Future legislative changes on flexible working

The Government sees flexible working as a tool to support staff with caring responsibilities and to increase workplace equity, diversity and inclusion.  

In its response to the 2021 consultation, Making Flexible Working the Default, the Government has indicated its intention to extend the statutory right to request flexible working to all employees from the first day of employment and to require employers to consult with staff on flexible working options before rejecting a request. The plans would allow employees to make two requests in a 12-month period (currently limited to one) and shorten the timeframe for responding to requests. New guidance will also be developed on dealing with temporary requests for flexible working.

Attitudes to flexible working

There has been a marked shift in working practices since the Covid-19 pandemic, with many more employers and employees adopting a flexible working approach.

New research by the Equal Parenting Project found that 59.5% of managers believe working from home improves the productivity of employees. Other types of flexible working are also associated with an increase in productivity. 44.1% of managers felt part-time work increased productivity and 43.7% felt that compressed hours had the same effect.

For more details on this research, please see our previous article Has Covid-19 changed how we work?

Increased focus on flexible working in schools

The Department for Education’s Flexible Working in Schools was published in May 2022. This non-statutory guidance set out the benefits of flexible working, including retaining experienced staff, recruiting from a broader pool of teachers, promoting wellbeing and improving work-life balance. It also pointed out the potential for flexible working to attract former teachers back to the profession after a care-related career break, particularly in shortage subjects.

Many of our schools clients have seen an increased number of staff seeking the flexibility to develop their own “side-hustles” or to take additional jobs. For some this is a way to explore a transition away from a purely school-based career. For others, it is more about supplementing income in the cost of living crisis. There has also been an increase in requests for compressed hours and periods of home-working during normal school hours, particularly from senior leaders.

The current statutory right to make a flexible working request

All employees with at least 26 weeks’ service for their employer currently have a statutory right to request flexible working. There is no requirement to have caring responsibilities to make such a request. Indeed, the employee does not have to explain their reasons for the request, although many will include such details to support their case in line with the school’s flexible working policy.

How should flexible working requests be handled?

Employers must handle statutory flexible working requests “reasonably”. This includes taking into account the statutory Acas Code of Practice on Flexible Working  on dealing with such requests.

Where employers cannot agree to the request, they should consider whether there is a compromise arrangement which can be agreed. This element of discussion to explore a compromise arrangement is likely to become a requirement if and when the legislation is updated.

Requests can only be refused on one or more of eight specific business reasons.

Decisions on statutory flexible working requests must be made within three months, although employers and employees can agree to extend this period between them, for example to allow time to trial the changes. Employers should also allow employees a right of appeal.

What can be requested in a statutory flexible working request?

Employers sometimes assume that a flexible working request will always be a request to reduce working hours. This is not the case. Employees can also request to change their place of work and pattern of hours while maintaining their contractual hours.

It is also possible for employees to request additional hours in a flexible working request. Indeed, with the potential time efficiencies of replacing face to face with remote meetings and events, there may be part-time staff who now feel able to increase their hours if they are permitted to work from home for some of the time.

Do we need to respond in the same way to an informal or non-statutory request?

Any member of staff can of course make an informal request to work flexibly at any time, but the school is not required to follow the statutory process in that case. An informal request or a request from a member of staff who is not eligible under the statutory scheme does not entail the same process. However, schools should be mindful that they must still respond reasonably to such requests and on the basis of sound business reasons. They could otherwise risk discrimination, Part Time Workers Regulations or constructive dismissal claims.

Many schools channel all flexible working requests, statutory or otherwise, through the same internal process. This has the advantage of dealing with requests consistently and providing a paper-trail to evidence decision-making. 

Can schools insist some roles are full time?

Many schools are having to restructure their teaching and support teams to try to balance the budget and make full use of staff resources. In doing so, schools should be aware of the legal risks of selecting staff for redundancy or dismissing because of part-time status, and insisting that some roles are carried out full time.

The recent employment tribunal case of McBride v Capita Customer Management Ltd provides a salutary warning to schools. Full details of this case are available in our previous article Employee dismissed for refusing to go full time was unfairly dismissed and discriminated against on grounds of sex.

In this case, the claimant was permitted to job share after returning from a care-related career break. A team restructure took place and it was made clear that all roles in the new structure would be full time. The employer did not provide clear reasons for this decision. The claimant refused to work full time and was made redundant. She brought claims of indirect sex discrimination and unfair dismissal which the tribunal upheld.

Although the tribunal agreed that the employer had a legitimate business aim for the restructure, it found that it was not proportionate to require one person to carry out the role full time and not to allow a job share.  It also found that there was in fact no redundancy situation (as there was no decrease in the kind of work the claimant carried out) and there was no other substantial reason to dismiss. The tribunal found that there was no proper evidence that a job share would not have been effective in the new structure.

The importance of evidence-based decision making

As this case shows, schools should avoid assuming that a working arrangement will not work without examining and documenting the rationale for that conclusion. Carrying out trials of proposed flexible working arrangements, followed by review and reflection, allows evidence-based decisions to be made rather than relying on long-held unsubstantiated views that flexibility is not feasible in schools.

This approach, if well managed, can lead to successful and innovative ways of working which benefit staff and pupils.

Where the evidence shows adverse impacts, a trial and review process could, alternatively, provide a strong foundation to defend a claim.  

Taking a proactive approach to flexibility

Acas recommends that each flexible working request is dealt with in the order it is received. However, an agreement to one request will inevitably impact on the ability of the school to agree future requests.

The DfE guidance encourages schools to take a strategic and proactive approach to flexible working rather than reacting to individual requests in isolation.

Schools would be well advised to carry out a proactive review of the impact of flexible working in different roles. Carrying out staff surveys enables schools to take an overview of the likely level of demand for more flexible options. Schools are encouraged to build consideration of flexible working into the early stages of the timetable-planning cycle. This flexibility by design approach can help to avoid the negative impacts on staff morale, employee relations and educational outcomes of piecemeal arrangements made late in the school year. 

What does flexibility look like in schools?

Flexible working arrangements which can work successfully in schools include:

• Late starts or early finishes
• Moving form tutor time to later in the day
• Virtual team meetings
• Consolidated PPA time working from home
• Shared management responsibilities
• Virtual parental meetings
• Split classes
• Virtual CPD from home

The legal considerations

While it is useful for schools to be proactive in assessing impact and setting policy on flexible working, it will always be necessary to look at each individual flexible working request on its own merits and to ensure that any refusal is based on one or more of the eight statutory reasons, supported by a strong rationale. 

Schools which implement a blanket policy of refusing certain types of request (such as for part-time working) risk claims, including indirect sex discrimination and a failure to make reasonable adjustments for disabled employees.

Employees who have brought statutory flexible working requests are protected from detriment and dismissal because they have done so. Schools should also be aware of the special legal protections from part-time workers and for those returning to work after a period of family-related leave.

Schools are advised to seek legal advice at an early stage on both individual requests and policy decisions to mitigate the risk of complaints and claims.

How Wrigleys can help The employment team at Wrigleys is expert in helping charities, third sector and education sector clients to create, establish, update and implement workplace policies, including flexible working policies. Our timely and practical advice on managing individual requests and complaints can also help to reduce the risk of legal claims. We work within the wider Wrigleys’ education team and have in-depth understanding of how our schools clients’ governance, regulatory and industrial relations obligations impact on their employment policies, processes and decisions.

 

If you would like to discuss any aspect of this article further, please contact Alacoque Marvin or other member of Wrigleys’ education or employment teams on 0113 244 6100. You can also keep up to date by following Wrigleys’ education and employment teams on @WrigleysEd and @Wrigleys_Emp. The information in this article is necessarily of a general nature.  The law stated is correct at the date (stated above) this article was first posted to our website. Specific advice should be sought for specific situations. If you have any queries or need any legal advice please feel free to contact Wrigleys Solicitors.