SEN


generally much more costly, in terms both of damages and of reputation. There have been very few cases brought under the right to request fl exible working which have not also involved a claim of direct or indirect sex discrimination. Tribunals have in the past noted that women are more likely than men to be single parents caring for children. This observation has sometimes (though not always) led to the conclusion that a policy requiring that a job be performed full-time, rather than part-time, would have a disproportionate impact on women and is discriminatory. The employment tribunal will need to be satisfi ed that the requirement to work full-time is “objectively justifi ed”. Valid concerns about the interests of pupils could well provide such justifi cation.


If you grant it to one teacher, are all entitled? There is no direct case law on this question, but it would seem that a wave of requests could be rejected on the basis of one of the eight legitimate grounds for rejecting requests. For example, it might impose unreasonable additional costs; it may not be possible to re-organise work among existing staff, or to recruit additional staff; it may become detrimental to the quality and performance of the primary school. As set out above, granting a request is a permanent contractual change so you cannot go back on previous agreements to accommodate a subsequent one. Having said that consistency in dealing with staff is important not only for legal reasons, but also to maintain morale and a co-operative working environment. The most straightforward and effective way to ensure consistency is by recording requests and processing each request in the same way.


It is of course conceivable that inconsistent decisions may be necessary. Where it is unavoidable, the employer should explain the inconsistency (in the example given, the organisational capacity for fl exible working may have been reached after the fi rst applicant was granted fl exible working).


The practical side


Schools should have a clear policy in place. Flexible working arrangements require a great degree of co-operation, communication and forward- planning. Inevitably, however, the decision on fl exible working is likely to depend on the circumstances of individual requests. Any policy that broadly


protected the school’s right to reject requests, in accordance with the eight reasons listed, should offer primary schools adequate protection.


Practical guidance on handling a request Follow the procedure: The statutory procedure is highly prescriptive, but it is at least clear. When a request is received, the employer must keep to the time limits, bearing in mind that they can be extended if both parties agree. Having a system established in advance should help ensure that requests are dealt with promptly.


Maintain records on requests: Schools should obtain and keep proper diversity information. Failing to monitor the proportions of different groups (by age, sex, race, disability etc) within the workforce, thereby failing to adequately record the respective needs and treatment of those groups will inevitably undermine a claim for discrimination. Costs won’t always trump: Cost may be a legitimate concern for all


schools in the current climate, but the employment tribunal has indicated that employers will have to put up with a certain level of cost and ineffi ciency for the sake of improving family-friendly policies and practices. Ultimately, a policy which puts a particular group at a disadvantage, and yet cannot be objectively justifi ed, would be far more costly than the costs of a fl exible working policy. Some employees may have a stronger claim against an employer for a rejection of their request so employers receiving requests from several employees working in one department for example, will need to proceed cautiously in weighing them up against each other.


Conclusion


The right to request fl exible working throws up complex challenges for headteachers. Schools with established procedures in place are unlikely to be caught out and should not be afraid to turn down requests if they are incompatible with the needs of pupils. The real danger, which usually goes hand-in-hand with requests for fl exible working, is that of sex discrimination claims. Schools that take a pragmatic, consistent and open approach to dealing with staff are likely to signifi cantly minimise their risk.


• Vanessa Latham is an employment partner at law fi rm Berrymans Lace Mawer LLP. Email vanessa.latham@blm-law.com


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