Flexible Working Applications In SchoolsPosted in : Quarterly Education Law Updates on 19 August 2020
Paul Upson is an Associate Director at education law specialists, Napier Solicitors. In this Quarterly Education Law Update, he sets out some of the issues to be considered when a teacher makes an application for flexible working.
Like all employees, provided they meet the relevant qualifying criteria, teachers have a statutory right to make an application for flexible working. The primary qualifying criteria are that the individual has worked continuously for 26 weeks prior to making the application; and that the individual has not made another statutory application for flexible working during the previous 12 months.
An application for flexible working can take many forms. It might include a request for a reduction in the number of hours that the employee works; a change to the times when the employee works; compressed hours (where the employee works their normal hours over a shorter period); home working; or job sharing (where two employees work together to cover a full-time post).
Different forms of flexible working may suit different employment sectors, businesses, or workplaces. Homeworking became the norm across in many workplaces during the coronavirus lockdown and, in the future, it is likely that lots of employees will continue to work from home for at least some of their working week. Like the rest of the workforce, teachers have seen increased homeworking as a result of the coronavirus, but such a working pattern is unlikely to be feasible in the long term given the nature of the work that teachers do and the fact that more pupils are now scheduled to return to school.
A school must deal with a flexible working application in accordance with the relevant statutory procedures. Where appropriate, a school should also ensure that it follows relevant education sector procedures and its own internal school flexible working policy (where such an internal policy exists). Potentially relevant education sector procedures include TNC 2009-6 Flexible Working Scheme; TNC 2009-7 Temporary Variation of Contract; TNC 2009-4 Job Share Scheme for Teachers; and TNC 2009-5 Career Break Scheme.
When dealing with an application for flexible working, school leaders need to be alive to the possibility that a teacher might allege that she/he has suffered unlawful discrimination in relation to the way that the application is handled or in relation to any decision to reject the application. In particular, potential issues can arise around indirect sex discrimination and disability discrimination (see further below).
Statutory right to make a flexible working request
A teacher who makes a flexible working application may make a complaint to an Industrial Tribunal alleging that the school has failed to follow the relevant statutory procedural requirements for such a request; and/or that the school’s decision to reject the application was based on incorrect facts.
The relevant statutory procedural requirements are set out in the part IXA of the Employment Rights (Northern Ireland) Order 1996 and the Flexible Working (Procedural Requirements) Regulations (Northern Ireland) 2003. In summary, the main statutory procedural requirements are as follows:
- An employer who receives a flexible working application shall hold a meeting with the employee to discuss the application within 28 days after the date on which the application is made;
- Where a meeting is held to discuss a flexible working application the employer shall give the employee written notice of his decision within 14 days after the date of the meeting;
- Where the decision is to refuse the application, the written notice should state which of the specified grounds are considered by the employer to apply; contain a sufficient explanation as to why those grounds apply; and set out the appeal procedure.
- If the employee appeals, the employer shall hold a meeting with the employee to discuss the appeal within 14 days.
- Where a meeting is held to discuss the appeal, the employer shall notify the employee of his decision on the appeal in writing within 14 days after the date of the appeal meeting.
- Where the employer dismisses the appeal, the written notice should state the grounds for the decision and contain a sufficient explanation as to why those grounds apply.
An employer and an employee may agree to extend any of the timescales referred to above. Any such agreement must be recorded in writing by the employer.
The specified grounds which can be relied upon for refusing a statutory flexible working application are the burden of additional costs; detrimental effect on ability to meet customer demand; inability to re-organise work among existing staff; inability to recruit additional staff; detrimental impact on quality; detrimental impact on performance; insufficiency of work during the periods the employee proposes to work; and planned structural changes.
The TNC 2009-6 Flexible Working Scheme addresses some of the specified grounds. The following is an extract from Section 3 of the document:
Having determined that the post is suitable for flexible working the Board of Governors will be required to give consideration to the needs of the teacher.
It is important that the decision in relation to the viability of a flexible working arrangement is based on clear and justifiable business reasons, for example:
- the additional costs;
- the effect on the school’s ability to meet pupils’ needs;
- the ability, or otherwise, to reorganise work among existing staff;
- the effect on the quality of education to be provided;
- an insufficiency of work during the time when the teacher proposes to work.
A teacher does not have a right to pursue a tribunal complaint under the statutory provisions simply because she/he disagrees with the employer’s specified ground/s for the decision, provided that the factual basis for the specified ground is correct. If a teacher pursues a claim in relation to the statutory provisions, it is unlikely that the tribunal will subject the school’s reasoning to detailed scrutiny (again provided that the factual basis for the specified ground is correct).
Where an employee pursues a tribunal complaint under the statutory provisions, it is not unusual for it to be lodged in conjunction with a claim for unlawful discrimination. If a teacher makes an allegation of unlawful discrimination, the tribunal is likely to examine the school’s reasoning in much greater detail (see further below).
If a tribunal finds that a teacher’s complaint under the statutory provisions is well-founded it can make a declaration to that effect. The tribunal may make an order that the school reconsider the application and make an award of compensation to be paid to the teacher of up to 8 weeks’ pay.
Indirect sex discrimination
Indirect sex discrimination can occur where an employer applies a ‘provision, criterion or practice’ (PCP) equally to all employees but the practical effect of the PCP puts one gender at a particular disadvantage. The particular employee must also show that the PCP put her/him at that disadvantage.
Even if a PCP is found to be indirectly discriminatory on gender grounds, the employer will have a defence to any tribunal complaint if it can establish legal justification for the PCP (i.e. if the employer can show that the PCP was a proportionate means of achieving a legitimate aim).
It is generally recognised that women have the greater burden of childcare compared to men. It is likely that a tribunal will accept that a policy requiring a job to be performed on a full-time basis has a disproportionate adverse impact on women. Consequently, if a female teacher makes a flexible working application due to childcare commitments, the school needs to keep in mind that issues around indirect sex discrimination may arise.
Even where a female teacher, with childcare commitments, can establish that a requirement that she work full-time is indirectly discriminatory on gender grounds, the school will be able to defend any subsequent tribunal claim if it can show that the requirement to work full-time is objectively justified on the facts of the particular case. The focus of the objective justification test is on whether the school's requirement that the employee work full-time meets a legitimate aim; and is proportionate means of achieving that aim.
The school’s legitimate aim is likely to overlap significantly with the specified ground/s that it has given for refusing the statutory flexible working application. The matters set out in Section 3 of TNC 2009-6 Flexible Working Scheme may also give rise to a legitimate aim.
Any decision to reject a flexible working application is unlikely to be proportionate if there is a less discriminatory way of achieving the relevant legitimate aim. If a school is unable to approve the teacher’s original application for flexible working, it is usually sensible to explore whether the individual can be accommodated in some other way – maybe through some form of amended application. For example, a school may not be able to approve a reduction in working days from five to three; but may be able to allow a reduction to four days per week. If it is not possible to accommodate the teacher in some other way, it is sensible to keep a record of any alternatives that have been considered, as this will likely assist the school if it ever needs to establish objective justification for a decision to turn down a particular flexible working application.
Disability discrimination and the duty to make reasonable adjustments
A claim for disability discrimination can only be brought if the employee meets the definition of a disabled person in the legislation. The Disability Discrimination Act 1995 defines a disabled person as a person with a ‘physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out day-to-day activities’. The substantial adverse effect in question must be long-term. Long-term in this context means that it has lasted at least 12 months (or is likely to last 12 months).
There are a number of different forms of disability discrimination but the one that is most likely to be relevant in relation to flexible working applications is the duty to make reasonable adjustments for disabled employees.
Where a disabled employee is at a substantial disadvantage (in relation to any policy or practice applied in the workplace or in relation to the physical feature of the premises) an employer has a duty to make reasonable adjustments. There are a number of important points to make in relation to the duty to make reasonable adjustments.
Firstly, the duty to make reasonable adjustments only arises if the disabled employee is at a substantial disadvantage due to her/his disability (i.e. there must be a link between the individual’s disability and the alleged substantial disadvantage). If the alleged substantial disadvantage arises for a reason unrelated to the individual’s disability, then the duty to make reasonable adjustments will not be engaged. For example, if a disabled employee makes a flexible working application for a reason unrelated to her/his disability, the duty to make reasonable adjustments will not be engaged.
Secondly, the duty to make reasonable adjustments only arises if the employer has actual (or constructive) knowledge of the employee’s disability and has actual (or constructive) knowledge of the alleged substantial disadvantage. If the employer does not know that the employee is disabled and/or does not know that the employee’s disability is putting her/him at a substantial disadvantage, then the duty to make reasonable adjustment will not be engaged.
Thirdly, even where the duty is engaged, it is important to stress that the employer does not have to make all possible adjustments, only those which it is reasonable for it to make.
If a teacher makes a flexible working application for medical reasons, the school needs to keep in mind that the duty to make reasonable adjustments may be engaged. The school should consider whether the teacher is likely to be considered disabled for the purposes of the Disability Discrimination Act 1995; should also consider whether it is likely that the teacher will be able to establish a substantial disadvantage as a result of their disability (i.e. establish that the inability to work full-time and the need to work flexibly is due to her/his medical condition); and consider whether approving the flexible working pattern sought (or some form of amended application) would amount to a reasonable adjustment. When considering these matters, it may well be necessary for the school to seek occupational health advice.
Where the duty to make reasonable adjustments is engaged, the school may be able to implement other workplace measures which alleviate any alleged substantial disadvantage (i.e. implement other reasonable adjustments which enable the teacher to work full-time). If this is possible then the school will have complied with its duty to make reasonable adjustments without the need to grant the teacher’s flexible working request. In such circumstances, if the teacher continues to pursue the flexible working request, the school can consider it in the same way as it would consider a similar application from a non-disabled employee.
Flexible working is becoming more prevalent across the wider workforce. This shift towards flexible working often has benefits for both employers and employees. Like lots of sectors, it is likely that schools will continue to see increasing numbers of flexible working applications from teachers. Many such applications will be resolved to the satisfaction of both parties.
That said, it is important that school leaders are aware of potential legal issues that might arise when flexible working applications are submitted. Care should be taken to ensure that any flexible working application is dealt with in accordance with the relevant statutory requirements; that relevant sector policies and individual school procedures are followed (where appropriate); and that proper consideration is given to any potential discrimination issues that might arise.
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