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How to deal with a term-time working request

We look at how to deal with a term-time working request, some of the key considerations for employers and the best practices to follow.

As the school term draws to a close, and a new academic year beckons, many families will be thinking about work-life balance and establishing new routines.  

Term-time only working is an approach that neatly addresses the needs of many families but can be problematic for employers. We outline some of the issues you need to consider.

Applying to work term-time

An application to work term-time only is essentially a request for flexible working and can therefore be made by any employee who has accrued 26 weeks service.

Obviously, a term-time working arrangement will predominantly appeal to parents of school age children. However, grandparents involved in childcare may also wish to scale back their working time to have the holidays off. Term-time arrangements might also appeal to some employees without childcare responsibilities (for example the spouse of a teacher looking to enjoy more time off with their partner).

Dealing with a request

If you receive such an application you must deal with the request in a reasonable manner and within a reasonable period. The Regulations state that you must deal with any request within three months (although this may be extended if the employee agrees).

The ACAS Code of Practice sets out a simple recommended procedure. It will usually be appropriate to hold a meeting with the employee to discuss the request (allowing them to be accompanied by a colleague or Trade Union representative if they wish).

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.

Refusing 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 consider the request properly.

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.

If you refuse a request, you will need to be clear about the reasons or reasons you are relying on and explain why you are unable to accommodate a term time working pattern. It may be that you cannot find sufficient cover for the employee’s duties during the holidays or, for example, the additional overtime or agency costs of providing such cover would be prohibitive.

The legislation does not expressly require you to allow an employee to appeal against the rejection of their flexible working request. However, the ACAS Code suggests that employees should be allowed to do so and we would usually recommend that you do. Any appeal should be dealt with in a reasonable manner and within the three month time frame.

Indirect sex discrimination

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 bear the principal burden of child care, refusing a request on these grounds could give rise to a claim of indirect sex discrimination. However, indirect discrimination can be justified if it is a proportionate means of achieving a legitimate aim.

Having a blanket-ban on term-time working is risky and may expose your organisation to claims. Instead, you should carefully consider each request on its merits. How, with particular reference to the work you do, will you justify your decision to turn down the request?  What is the legitimate aim you are trying to achieve? How and why does this outweigh the potentially discriminatory effect on the individual?

Term-time arrangements: the practicalities

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.  

Ideally the arrangement agreed should be specified clearly within the employment contract (for example, whether the employee will work during half terms or not and how many weeks the employee will be expected to work during the academic year). For payment purposes you may want the employee to guarantee the number of weeks they will work during the year.  It is also a good idea to include provision within the employment contract for the employee to notify you of the term dates for the following academic year by a certain period in advance of that new academic year starting.  

Annualised hours?

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, payment and holiday entitlement. 

One solution may be to introduce an annualised hours term into the employment contract where the employee’s working hours are calculated on an annual basis and the employee then works those hours at times stipulated by you during the year (giving a greater degree of certainty). 

It is important to remember that the maximum 48 hour working week still applies to employees who work during term-time only (unless they sign an opt-out agreement). Stricter limits on working time may apply if the employee is involved in night work or very strenuous activities.

Payment of salary

It is of course open to you to determine how a term-time worker will be paid. However, the simplest method is to pay the employee’s annual salary in equal monthly instalments and, in practice, most employees will prefer a regular income throughout the year.  

Annual leave

One of the trickiest issues with term-time working is annual leave, and how and when this should be taken.

Thankfully, the Supreme Court has now provided some clarity on this issue in Brazel v Harpur Trust. The Supreme Court confirmed that the amount of leave to which a term-time worker is entitled should not be pro-rated to that of a full-time worker. The decision confirms that the alternative approach, adopted by many employers, of granting term-time workers annual leave equivalent to 12.07% of hours worked over the year does not always give accurate results and should not be used.

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. You don’t have to agree to this but a more flexible approach is to grant annual leave during term-time at your discretion and require the employee to make up the lost hours at times agreed. You will also need to consider whether the employee is entitled to take off public holidays (although, in practice, most public holidays will already fall within the school holidays).

An agreement from the employee to notify you in advance of the new academic year is essential to allow you to plan appropriately.

Need any help?

Putting together a package of terms and conditions for a term-time only employee can be difficult as every individual’s circumstances will differ. Make sure you cover all bases by taking advice and speak to us if you have any questions.

If you require any guidance or assistance, contact our employment law solicitors.