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Win-win with flexible working

This is a puzzling area for many schools. What are the rights and powers of employees and employers?

Flexible working is justified as helping people with dependants to support themselves, and widening the pool of talent. In theory, then, it is a win-win game.

Many small employers - and for this purpose most schools are small employers - do not see it this way at all. They see it as someone messing up the smooth running of the organisation by asking for something different. At this point, rights and powers become relevant.

Employees who have fulfilled a qualifying period and who are parents or carers, with direct responsibility for someone, have a right to request flexible working. This can include variations to hours or times of work, and working elsewhere, such as at home. Possible consequences include job sharing.

The request is for a change of contract. Once the contract is varied, it stays varied: it is not flexible week on week or day to day. The law has a presumption in favour of the request. Provided it is made in the correct form, it should be granted, unless the employer can adduce reasons against it.

Acceptable reasons refusing it are: the burden of additional costs; detrimental effects on the employer's ability to meet customer demand; the inability to reorganise work among existing staff; the inability to recruit additional staff; the detrimental effect on quality; the detrimental impact on performance; insufficiency of work during the periods the employee proposes to work; and planned structural changes. However, an employer must be able to show that serious consideration has been given to the request.

There must be an appeals process and employers can lose at tribunal for failing to follow the statutory procedures or because the facts they relied on are wrong. As ever, employers should get advice before responding to a request.

Richard Bird, Legal consultant to the Association for School and College Leaders.

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