BOSS HR and Employment Law Consultants

So half term is upon us once again and I hear the sigh of many working mothers across the country desperately working out who goes where and when whilst still trying maintain a fragment of professionalism as they mumble “yeah its fine we’ve got it all worked out” …. ok, some mothers do have it all worked out but i’m afraid i’m not one of them! As a working mum, a lawyer and HR adviser I am still trying to master the art of juggling which as we all know is not fun!

However, i am also a HR adviser to business’ and an employer myself so I get to see the battle from the other-side which as much as we don’t always want to hear it is equally as stressful, disruptive and in some cases seriously detrimental to a business if not managed effectively.

Term time only working requests have become more and more relevant since legislation has changed on flexible working arrangements and whilst it can be viewed as an approach that neatly addresses the needs of many families it can be problematic for employers with many pitfalls. Whilst the working arrangements predominantly appeal to parents of school age children, grandparents involved in childcare may also wish to scale back their working time to have the holidays off and such requests are also appealing to some employees without childcare responsibilities (for example the spouse of a teacher looking to enjoy more time off with their partner) so for an employer these requests can cause a headache and we get that.

So what do you do if you receive a term time only working request?

Firstly don’t dismiss it, as an employer you have an obligation to consider the request in a reasonable time frame and a reasonable manner and any employee who has accrued more than 26 weeks of service has the right to request such an arrangement.

It is good practice to provide the employee with a written outcome. It is also important to remember that, where a new working pattern is agreed, any change will be a contractual variation and an updated contract, or letter varying the contract, should be issued to the employee.

What if you simply cant sustain such an arrangement and therefore want to refuse a request?

It is important to remember that the right to request flexible working does not create a right to work flexibly or part-time. The only obligation on you, as the employer, is to act fairly and consider the request properly. If you choose to refuse a request you should ensure you are clear and unambiguous in your reasoning and seek to provide your response in writing. Whilst the legislation does not give an express right to appeal best practice and our advice would be to allow such a process and be sure that you are meeting your obligations of fairness.

Under the Regulations there are eight prescribed grounds on which you can refuse the request which include the burden of additional costs, detrimental effect on ability to meet customer demand, inability to reorganise work amongst existing staff, detrimental impact on quality, and detrimental impact on performance.

Watch out for the pitfalls….

Although there is no right to term-time working, refusal in certain circumstances could constitute indirect discrimination on grounds of sex.
As more women than men unfortunately still bear the principal burden of child care, refusing a request on these grounds could give rise to a claim of indirect sex discrimination is difficult to defend and can only be justified if it is a proportionate means of achieving a legitimate aim.

Also, beware of having a blanket-ban on term time working. This is a risky approach and may expose your organisation to claims. Instead, you should carefully consider each request on its merits.

A term-time working arrangement is usually on the basis that the employee will work full time during the term-time. But what if the employee wants to work part-time or flexible hours during term-time? This can throw up issues regarding hours of work (and the maximum of 48 hours a week still applies), payment and holiday entitlement.

One of the trickiest issues with term-time working is annual leave, and how and when this should be taken.An employee who works only during term-time will usually take their holiday entitlement during the school holidays. A term-time only employee will effectively be taking unpaid leave for the difference between the time-off they actually take and their paid holiday entitlement.You will need to consider whether a term-time only employee will be allowed to take holiday during term-time.

Term-time working can take a variety of forms which may include: working during term times only; not working during the summer holidays only; or not working during the main school holidays but working during the half term weeks and for an employer can become a minefield when working out terms based on each individuals circumstances. When managed effectively however the arrangements can be truly beneficial to a business resulting in motivated and appreciated staff who are less likely to be forced out of the workplace giving greater certainty and a lower staff ratio turnover.

So, if your unsure about your requirements or simply looking for ways of managing your employees through the school holidays get in touch for further information.

Happy holidays!

School holidays.. arrgh! What are the employers obligations when it comes to requests for term time only working requests??