According to the Institute of Employment Studies (IES) we have a problem in the UK. The labour market is shrinking, leading to most organisations competing for talent more than ever before.

The external marketplace for school staff - leaders, teachers and support staff - is also shrinking.

Clients are telling us that, historically, where they have struggled to recruit leaders and teachers, support staff recruitment was always less of a challenge. That is not the case anymore.

Attracting support staff into schools is incredibly challenging right now.

Perhaps one of the reasons for this is that those who may have chosen to work in education for the school hours are now able to get more lucrative work-from-home jobs in other sectors.

We are also seeing continued challenges as the school workforce has been subject to cuts for years with no change to the workload. Retention is a problem as the work is tough and the grass is looking greener elsewhere.

Being flexible 

To counter some of this, the Department for Education recently began a £750,000 programme to aid motivation, maintenance, and recruitment by promoting flexible working in schools and multi-academy trusts (MATS).

This is the right thing to be doing, as flexible working has a huge role to play in school staff retention and recruitment.

According to the latest Workforce Census analysis, fewer headteachers are staying in the role beyond five years of taking up the post, and the number of teachers leaving their jobs last year increased by 12.4 per cent. 

We have been talking about the sector having a “leaky bucket” for a while now. A few years ago, we were encouraging a “grow your own” strategy to help deal with the teacher recruitment crisis but now we have fewer support staff entering the sector.

Education has got to start looking at the “employee expectations gap” - the disparity between what staff want from their employment in schools and what is available to them. Clearly, flexible working is a gap that needs filling.

Timewise recently conducted a Teaching Pioneers Programme in eight secondary schools across three MATs, supported by Browne Jacobson.

Its report on the scheme, which got its first airing at the Confederation of Schools Trust conference in Birmingham recently, revealed that most schools are a way off proactively encouraging flexible working. For the sector to continue to attract the best talent, provide working conditions and environments that encourage talent to flourish, and be able to retain that talent in the schools sector at all stages of a person’s life, the approach to flexible working must change.

The right to request flexible working has been around for many years but was initially a right limited to those caring for children, before being extended to those with wider care responsibilities. In June 2014, it was extended further to include all qualifying employees, regardless of their reason for seeking flexible working. 

What leaders need to know

Employees with at least 26 weeks’ continuous employment can make a request for flexible working and employers then have three months to consider the request and notify the employee of the outcome (including dealing with any appeal).

Employers must deal with the application in a reasonable manner and may only refuse a request for one of the eight reasons set out in the legislation:

• The burden of additional costs.
• A detrimental effect on the ability to meet customer demand.
• An inability to reorganise work among existing staff.
• An inability to recruit additional staff.
• A detrimental impact on quality.
• A detrimental impact on performance.
• Insufficient work for the periods the employee proposes to work.
• A planned structural change.

Only one request can be made under the statutory scheme within a 12-month period.

Leaders should take care in following their flexible-working policy and the procedure for considering requests. Leaders should also ensure that requests are dealt with in a reasonable manner.

There is no statutory definition of what it is to deal with a request in a reasonable manner, but the Advisory, Conciliation and Arbitration Service provides the ACAS Code and guidance, which make recommendations on how an employer should deal with flexible working requests.

As a lesson learned from a recent employment tribunal, leaders should always enquire into how the school could accommodate the flexible-working request before making an automatic judgement that it is not possible, with no enquiry at all.

A lesson from the NHS

Interestingly, on 13 September 2021, changes came into effect within the NHS Terms and Conditions of Service Handbook, giving increased rights to request flexible working to all staff in England and Wales.  

The rights go beyond the current statutory flexible-working regime and are designed to give contractual force to part of the NHS People Promise of “we work flexibly” and support the commitment to moving to flexibility by default.

The increased rights give all NHS employees the right to request flexible working from day one and the right to make more than one request a year (regardless of the reason for the request).

In fact, the NHS has gone on to clarify that there is no limit to the number of applications that can be made.

As a result of the changes in the NHS, it is likely that NHS employers will see an increase in flexible-working requests. They will need to consider how to promote flexible working and make sure this is considered at the point of recruitment, as well as in departmental and one-to-one meetings with staff and appraisals.

Training for managers/decision makers should include making sure that they are aware of the changes in procedure, and that they are clear on the approach to be taken to flexible-working requests and the importance of being able to justify any refusals.

If this is happening in the NHS, it seems abundantly clear that flexible working needs to be ratcheted up the strategic priority list in schools and academies, too.

Time to act

School leaders cannot argue that it is too hard to embrace flexible working when NHS employers are getting behind it with similar front-line worker challenges and funding constraints.

The Timewise report, and the subsequent headteachers’ guidance, are excellent starting points for those who want to improve their approach to flexible working.

This is a top priority: our country and school leaders must engage in finding ways to make this work for staff.

Schools cannot keep their heads in the sand on this issue anymore and need to think creatively about how flexible working can be embraced in their schools.

Emma Hughes is the head of HR services for law firm Browne Jacobson