Flexible Working Legislation: What Schools Need to Know

The implementation of the new rules around statutory flexible working requests will be coming into force on 6 April 2024, so here we look at what schools need to do in response.

The key changes are detailed in the table below:

What schools need to do in response

Update your flexible working policy

A clear, flexible working policy can form an important part of a school’s legal duties to its staff, especially when integrated with broader staff wellbeing policies. The policy should be updated and made available for staff to review in anticipation of the changes in early April. Having a policy allows you the opportunity to take ownership of the way flexible working requests are made at your school.

Multi-academy trusts must ensure the use of the policy in practice is monitored across the different schools for consistency in application.

Communicate with staff

Make them aware of the policy or updated policy, where they can find it and encourage them to read it. Openly discuss with your teams how the process will work. Keep in mind that all flexible working arrangements can be trialled and adapted where necessary. Flexible working is a two-way process, and requests need to balance with the school’s needs.

Addressing concerns

Consider what concerns or stumbling blocks exist around flexible working in your school and how these could be addressed. Some potential concerns and thoughts on resolution are detailed below.

Attainment

Your school may be concerned that flexible working arrangements may damage pupils’ attainment. There is limited evidence about the impact flexible working may have on pupil outcomes; however, guidance details that such concerns could be mitigated by:

• Allowing sufficient handover time for job share partners and

• Ensuring continuity of other employees, such as support staff.

Costs

It is true that some flexible working arrangements, such as job sharing, may be costly for schools. However, if these arrangements are successful and experienced employees are retained, the reduction in recruitment and induction costs could offset that cost.

In the case of Webster v Princes Soft Drinks ET/1803942/2004, the tribunal acknowledged 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.

Timetabling

Your school may be concerned that flexible working arrangements may lead to challenges associated with timetabling. To avoid this, you can include this in your policy and ask staff, where possible, to submit requests by a particular date to ensure there is sufficient time to plan the timetable.

Parents

If you are concerned that parents may not support the flexible working of your employees, openly communicating with parents may be helpful, particularly around buy-in to the idea and reassurance that the flexible working of staff will not impact pupils’ safety and quality of education.

Benefits to engaging with flexible working

Dealing with flexible working requests is an additional burden where schools are already stretched for time and resources. However, it is a legal right, and there are many benefits to implementing flexible working amongst your staff, including retaining experienced staff, recruiting from a broader pool of teachers, and promoting wellbeing and a work-life balance. Offering flexible working arrangements can also help to ensure that teaching suits employees at different stages of their lives, such as those with caring responsibilities or those planning a phased retirement.

Risks of refusal or non-engagement

• Breach of the statutory scheme: Breach of the statutory scheme can result in a maximum compensation payment of 8 weeks’ pay. This will be capped at the statutory maximum, which is currently £643 a week. From 6 April, this increases to £700 a week.

• Breach of the Equality Act 2010: Typically, additional protections arise where employees are seeking flexibility for childcare, religious reasons, or they are disabled (or wish to look after someone who is) and in turn, they have a protected characteristic and may have protections and claims under the Equality Act 2010. Compensation for discrimination claims is uncapped.

• Constructive unfair dismissal: There is also a risk that the employee will argue that the school had handled the request unreasonably or refused unreasonably and breached the implied term of trust and confidence. This could give rise to a grievance and/or a claim for constructive unfair dismissal for those employees with at least two years of service. The current cap on unfair dismissal claims is £105,707, increasing to £115,115 from 6 April 2024.

• Reputational damage: Reputation is a very important factor. Maintaining a good reputation has a positive impact on recruitment and retention, but a bad reputation can cause long-lasting damage.

Guidance

The Government published non-statutory guidance entitled - Flexible working: resources for teachers and leaders, which will be updated in April. This is the current guidance:  Flexible working: resources for teachers and leaders - GOV.UK

Acas have published its revised Code of Practice on requests for flexible working. The guidance in the Code will be taken into account by employment tribunals when considering relevant cases: Code of Practice on requests for flexible working Acas

There is further guidance from Acas: The right to request- Responding to a flexible working request, which will be updated on 6 April 2024. This is the current guidance: The right to request - Responding to a flexible working request - Acas

If you are a senior leader or HR professional within a maintained school, academy, multi-academy trust or independent school and would like to discuss how flexible working could be implemented in your setting or a particular ongoing or anticipated request in your school, please do get in touch. I can be contacted on 01206 217624 or via email at helena.oxley@birkettlong.co.uk.