Term of employment

As recently reported in the news, from September 2015 all state schools will be able to decide their own term dates, under plans for more school…

As recently reported in the news, from September 2015 all state schools will be able to decide their own term dates, under plans for more school autonomy announced by the government. Unions are warning it could cause chaos for families with children at different schools.

More mothers are working than ever before and more fathers are taking on childcare responsibilities, therefore the scope for requests to only work term-time is increasing and is likely to follow a similar pattern for some time to come.  Some of you may already have term-time only employees and many more of you are likely to receive requests for such working patterns. With the long school summer holidays upon us, we outline some of the issues you need to consider.

Applying to work term-time

A term-time working arrangement will predominantly appeal to parents of school age children.  An application to work term-time only may be made informally or may form part of a flexible working request.  Employees with children under 17 years of age (18 years of age if the child is disabled) and those who care for adults can apply for flexible working arrangements.   If you receive such an application you must follow the current statutory procedure. 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 a limited number of 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.

Indirect sex discrimination

Although there is no right to term-time working, refusal in certain circumstances could constitute indirect discrimination on grounds of sex. The right to request flexible working offers little scope to examine the commercial rationale. However, in a claim for indirect sex discrimination, the reason why a request has been refused is fundamental to establishing whether the refusal can be justified.  In the 1998 case of London Underground Limited v Edwards the Court of Appeal found that women are more likely than men to be single parents caring for children.  This assumption that women have the greater burden of childcare led to a further assumption that a policy requiring that a job be performed on a full time basis would have a disproportionate impact on women.  It should be noted that this assumption has not gone unchallenged in the Courts. In the 2009 case of Hacking & Patterson v Wilson the Employment Appeal Tribunal rejected the argument that women as a group, owing to childcare commitments, will inevitably be placed at a particular disadvantage by a policy not to grant flexible working. The EAT pointed out that many women return to full time employment after childbirth and some women who work part time do so as a matter of choice rather than necessity with more men taking on childcare responsibilities.

Term-time arrangements

Term-time working can take a variety of forms which include working during term times only, not working during the summer holidays only, 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.   A Term-time working arrangement is likely to bring the employee within the definition of a part-time worker. This means they cannot be treated less favourably. You cannot therefore pay them less but you can pay them pro rata.

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.  An easier option 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 better degree of certainty.  It must also be remembered the maximum working week still applies to employees who work during term-time only.  So an employee should not be required to work more than an average of 48 hours in any 7 day consecutive period over a 17 week period, unless they sign an opt out agreement.  

Payment of salary

There can be different arrangements as to the payment of salary for term-time workers.  One way that may simplify matters is to pay the employee’s annual salary in equal monthly instalments and in practice most employees would prefer a regular income throughout the year.   This may depend on whether there are a guaranteed minimum number of weeks that the employee must work per year and any additional clause in the contract that you may add regarding additional weeks during school holidays that you may require the employee to work given certain business needs.

Holidays

One of the thorny issues of term-time working is holidays. This is because there is no official guidance (although this is currently under review).  The following should be considered:

  • An employee who works only during term-time will usually take their holiday entitlement during the school holidays.
  • An agreement from the employee to notify you in advance of the new academic year will allow you to plan appropriately.
  • If you pay an annual salary in equal instalments the entitlement to a minimum of 5.6 weeks holiday a year, amounting to 28 days for a full time worker, should be paid at this rate.
  • In the state sector school holidays are around 13 weeks a year and in private schools holidays can be considerably longer, therefore there is rarely an issue of an employee who works term-time only being given their minimum paid holiday entitlement.
  • 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.
  • Consideration needs to be given to whether the employee is entitled to take off public holidays.   In practice most public holidays fall within the school holidays and half terms, with the exception of the May Day public holiday. 
  • Consideration needs to be given to whether a term-time only employee can 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 either make an appropriate deduction from the employee’s salary or require the employee to make up the lost hours at times agreed.
  • Calculating accrued holiday can be difficult due to the lack of official guidance. One suggestion is to calculate holiday accrual according to how many weeks holiday the employee is entitled to for the whole year. Alternatively it may be more appropriate to calculate holiday entitlement based on hours worked. 

Review of right to request

It has been widely reported that grandparents are getting increasingly involved in childcare arrangements.  In November 2012 the government confirmed its intention to implement the extension of the right to request flexible working to all employees with 26 weeks continuous service. In addition the intention is to replace the existing statutory procedure for considering requests with a new duty on employers to act reasonably within a reasonable period (with a new code of practice and best practice guide).  This is expected to come in by 2014.  So, not only will this change the procedure you have to adopt, but you may find those employees that have grandchildren at school age applying for term-time working. You will also appreciate the scrapping of the default retirement age makes this possibility far more likely.

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.

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