On 22 November 2021, the DfE published tailored non-statutory guidance regarding flexible working arrangements for schools and academies (available here).
What is the definition of flexible working?
The guidance aims to help schools develop and implement appropriate flexible working policies as well as to support school employees who want to request flexible working.
The guidance defines flexible working as “arrangements which allow employees to vary the amount, timing, or location of their work”. Flexible working, therefore, includes part time working; job shares; phased retirement; staggered, compressed, annualised or other variable hours arrangements; time off in lieu; home or remote working; and/or the use of personal/family days.
The DfE has updated the school’s guidance to take into account the different types of flexible working requests that employees are now making, drawing on the latest evidence on flexible working, including the recent research “Exploring Flexible Working Practices in Schools”, as well as good practice examples from within the sector.
The schools sector has typically supported traditional flexible working requests for such arrangements as job shares, part time working and variable hours, often to support teaching staff who have dependents or are nearing retirement. Requests for flexible working in schools were traditionally made under the statutory procedure set out in the Employment Rights Act 1996 and were available to any employee that had been employed for at least 26 weeks, provided they had not made an application under the regime in the past 12 months.
However, following the coronavirus pandemic and the government’s instruction to work from home if you can, working practices in the UK have changed significantly leading to employees readdressing how and where they want to undertake their work. As a result, we’re now seeing an increase in requests for home working or variable/compressed hours from employees within the sector. Requests are now being made both under the statutory regime and in the form of informal discussions, for either permanent or temporary working arrangements. Both routes are considered within the guidance.
The key take home points of the guidance are:
Schools should consider embedding strategic, whole school approaches to flexible working within a flexible working policy, with contribution from all parties, including trade unions where appropriate.
Flexible working arrangements feed into an employer’s duty to protect the health, safety and wellbeing of its staff and should be considered as a means of minimising stress related illness.
Some flexible working arrangements may be more suitable for particular roles than others, but any member of school staff can make a flexible working request.
Flexible working requests can be made using the statutory procedure or the non-statutory procedure. Irrespective of the procedure used, the guidance encourages dialogue between the parties to consider the impact of the request and the available options.
Trial periods are encouraged to test out plausibility of flexible working arrangements for both the school, and the employee.
Schools have a duty to consider requests for flexible working fairly, in a timely manner and according to due process based on business need. The school makes the ultimate decision on whether or not to accept flexible working requests.
Flexible working arrangements should not be used to address excessive workloads.
Policies and decisions regarding flexible working should comply with the school’s obligations under the Equality Act 2010.
What do schools need to do?
The guidance acknowledges that there are already challenges to overcome with implementing flexible working arrangements in a school setting. However, the guidance seeks to encourage schools and its employees to work together to establish arrangements that work for both parties, while ensuring consistent high-quality provision for pupils.
The guidance does not pose an obligation on schools to grant all flexible working requests made, but they must be considered.
If the request has been made under the statutory procedure, schools must be mindful of their obligations under the legislation with regards to how and when they must respond. Failure to comply with the rules may result in liability for the school of up to eight weeks’ pay, and/or an order for reconsideration of the request being ordered by the Tribunal. Employees may also consider bringing claims for unlawful detriment and/or automatic unfair dismissal, each of which carry additional financial liabilities if successful.
If a school has received a flexible working request and requires guidance on how to respond, in light of the guidance, particularly where the request has been made under the statutory procedure, we have a team of experts ready to assist.
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Emma is a Solicitor within the firm’s Education team specialising in employment advice for education clients including independent schools and academies, as well as both further and higher education institutes.