The new flexible working rules introduced by the Employment Relations (Flexible Working) Act 2023 came into effect from 6 April 2024.
As a reminder, the current position is that:
It should be remembered that this only remains a right to ‘request’ and requests can be refused on one or more of eight specific grounds set out in legislation.
The scheme is supported by a statutory Code of Practice issued by ACAS, Code of Practice on requests for flexible working. This addresses how employers should deal with requests under the law and outlines good practice in handling requests in a reasonable manner. When deciding complaints brought under the statutory scheme, tribunals must take the Code into account where relevant.
It is therefore essential that any senior leaders, trustees, governors and staff dealing with flexible working requests and/or involved in developing policies are familiar with the law and this Code as well as legal duties under the Equality Act 2010.
Schools may decide to agree arrangements informally, but the statutory procedure and Code must be followed where an employee makes a statutory request.
Flexible working is a broad term that describes any working arrangement that meets both the needs of the employee and employer regarding when, where and how an employee works. This can include but is not limited to:
The April changes are likely to place further pressure on the school recruitment process, with employers and employees both needing to be very clear from the outset what their expectations are. The applicant will need to explain what they want and the school will need to confirm whether or not that is likely to be compatible with the role.
If the nature of the role does not allow for flexible working, the onus will be on schools to make this known. This could result in opportunities for indirect discrimination claims to be brought, or for a greater gender pay gap to arise, so schools will need to monitor any trends carefully and be able to justify why certain roles cannot be carried out in a flexible manner.
It is unwise for schools to reject flexible working without consideration. Some schools may consider having two job shares to be costly but, if successful, experienced employees may be retained, reducing overall recruitment and induction costs. There are also often concerns about pupil attainment and impact on pupils; however, there is little evidence to support this provided that the flexible working is fully supported by the school, including time for handovers and continuity in other staff.
The Department for Education have produced non statutory guidance to assist schools and multi-academy trusts in developing and implementing policies and to support employees.
Whilst flexible working can be difficult, there is growing evidence of schools successfully introducing flexible working arrangements. An example is the United Learning group with over 80 primary and secondary schools across the UK, including a number of independent schools, who since 2021 have designed and implemented innovative flexible working solutions.
There are many benefits for schools that have implemented flexible working, with those which have done so reporting the following:
It can also help to ensure that teaching as a career suits employees at different stages of life, such as those:
Four-day-week
The Government has recently denied plans to impose a right for full time workers to work a four-day working week unless ‘not reasonably feasible’. This can of course already be made as a request under current flexible working legislation. Therefore, even if imposed, assuming the right remains only to ‘request’ rather than to ‘demand’, it would mean nothing new. The Government has indicated that any changes to employment legislation will be consulted on, working in partnership with business.
A four-day-working week has already been embraced in countries such as Australia and Belgium. In recent UK trials, 89% of a pilot group made a permanent switch. It will be interesting to watch how this develops in the UK and the possible impact on the education sector.
Right to switch off
Labour has pledged to give employees the right to switch off. Aiming to prevent the unintended blurring of boundaries between work and home life, particularly given that many employees are now working from home.
Employers are already obliged to provide a safe and healthy working environment which is free from excessive stress. Failing to meet these requirements could expose employers to claims of unfair constructive dismissal if an employee resigns due to a breach of trust and confidence. There is currently no specific law giving the right to switch off but employees retain a human right to privacy. Many businesses already have policies in place that limit and address out of work contact.
With changes driven by the rise in flexible working following the pandemic, many countries have already successfully implemented this right. In Belgium, the rule applies to companies with 20 or more employees, it is believed that the UK government is considering an exemption for smaller firms. It is understood the government are exploring different approaches for different types of business which could include industry-specific or role specific-exceptions.
In Portugal from 2021 there have been strict regulations prohibiting employers from contacting workers by phone, message or email outside of shift hours, except in exceptional circumstances.
It is suggested that this right will be contractual so breach may lead to compensation awards.
Following introduction of the Employment Rights Bill on 10 October 2024, it has been indicated that these proposals will be taken forward via a new statutory Code of Practice, yet to be published.
What seems clear is that if the education sector is unable to adapt to the continuing flexible working changes, this may simply compound the existing issues with retention and attraction into the industry of staff. Consideration of adapting ways of working and possible alternatives should be on the agenda for all schools.
Louise Brenlund is a Partner and Head of Employment at Warners Solicitors. If you are looking for advice, support or training on flexible working contact Louise on 01732 375325. Her email is [email protected].
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published. We do not accept responsibility or liability for any actions taken based on the information in this article.
