In the evolving landscape of employment, flexible working has emerged as a much-lauded solution to the demands of modern life, offering the potential for improved work-life balance and enhanced employee satisfaction. Yet, for certain professions, notably teaching, the application of such flexibility remains markedly elusive. Teachers are constrained by the strict timetables of school hours and term dates, rendering the notion of flexible working not just impractical but seemingly unattainable. 

It is no secret that teacher retention across the UK is an issue. The conditions imposed on teachers are not in line with conditions of other types of employment which is causing early career teachers to leave the profession. Overall, postgraduate teacher recruitment, as measured by the Initial Teacher Training census, was 38% below target in the 2023/2024 academic year. 

Whilst the government have sought to introduce financial incentives these are perhaps not what is needed. 

In 2023, the percentage of teachers and leaders with flexible working arrangements had risen from 40% in 2022 to 46%. Part-time working remained the predominant form of flexible working, holding steady with 20% compared to 21% the previous year. Noteworthy increases included:

  • 15% in 2023, up from 12% in 2022, took time offsite for planning, preparation, and assessment.
  • 14%, a rise from 7%, were granted ad-hoc days to start late or finish early at their manager’s discretion to accommodate specific requests (excluding statutory leaves like sick days or bereavement leave).
  • 12%, up from 6%, received ad-hoc personal days off, also at the manager’s discretion, for particular requests (excluding statutory leaves).

Despite more teachers and leaders having access to flexible working options, attitudes towards the compatibility and acceptability of flexible working had grown more negative compared to 2022.

‘It doesn’t work like for teachers. The law is different.’

Over half (56%) of teachers and leaders expressed disagreement that flexible working aligns with a career in teaching, an increase from 51% in 2022. Additionally, among those who do not currently work flexibly, or whose flexibility is limited to occasional days off or early departures, 64% lacked confidence in requesting flexible working arrangements, up slightly from 62% in the previous year.

The rules regarding the right to request flexible working are defined in sections 80F–80I of the Employment Rights Act 1996 and the Flexible Working Regulations 2014 (SI 2014/1398). Prior to recent legislative changes, any employee who had been with the same employer for at least 26 weeks could apply for flexible working changes concerning their work hours, schedule, or location. The employer would be required to handle such requests fairly and could only deny them based on one of eight recognised legal reasons. If an employer handled a request unfairly or denied it for reasons not covered by law, the employee could file a complaint with a tribunal. 

The new flexible working legislation, the Employment Relations (Flexible Working) Act 2023 received royal assent on Thursday 20 July 2023 and came into force on Saturday 6 April 2024, which represents a significant shift towards more adaptable employment practices. 

Key features of the new legislation: 

  1. Day one right: Employees can request flexible working from the first day of their employment, removing the previous requirement of 26 weeks of service before becoming eligible.
  1. Increased request frequency: Workers are now entitled to make two requests for flexible working within any 12-month period, up from one.
  1. Reduced response time: Employers must respond to flexible working requests within two months, shortened from the previous three-month period.
  1. Consultation requirement: Before rejecting a flexible working request, employers are required to consult with the employee, providing an opportunity to explore alternative arrangements.
  1. Simplified process: The obligation for employees to demonstrate how their requested changes might affect the company and how these effects could be managed has been removed, aiming to simplify the request process.

These adjustments are designed to encourage a much more dynamic interaction between employers and employees regarding work arrangements, promoting a positive culture where flexible working becomes a standard option rather than an exception. The legislation also includes provisions that broaden the definition of flexible working to include hybrid models, job sharing, and reduced hours, reflecting a more inclusive approach to different working styles.

The new legislation could significantly impact the morale and teacher retention in schools by fostering a much more supportive and adaptable workplace environment. Here’s how:

  1. Enhanced work-life balance: The ability for teachers to request flexible working arrangements from day one, allowing them to better manage their personal responsibilities such as childcare needs. This can reduce stress and increase job satisfaction by enabling teachers to create a more harmonious balance between their professional and personal lives. 
  1. Increased job attraction: Schools that offer flexible working options become more attractive to potential employees. This is particularly important in a profession that is currently struggling with recruitment. Prospective applicants might be more inclined to choose or stay in a teaching role that allows them the flexibility to adjust hours or work from home when necessary. 
  1. Reduced teacher burnout: Teaching is an extremely high-stress career, and burnout is a common factor for those leaving the profession. By providing options such as part-time working, compressed hours or job sharing, the legislation allows teachers to tailor their work commitments to their energy and capacity whilst reducing burnout. 
  1. Promotion of a positive school culture: When schools implement flexible working practices correctly, it signals to employees that their wellbeing is valued. This supportive culture can enhance staff morale and loyalty, important for retaining skilled and experienced teaching staff. 
  1. Improved teacher performance: With reduced stress and better working conditions, teaching staff can better perform in their roles and be more effective. Happier teachers are more likely to be engaged in their work, bringing creativity and enthusiasm into the classroom, which benefits student learning outcomes. 

School leaders should not view flexible working as a taboo or barrier but rather as an innovative opportunity that aligns with the evolving needs of the educational sector. When implemented thoughtfully, flexible working can substantially enhance both school objectives and learning outcomes.

School leaders need to approach requests for flexible working, especially from returning mothers managing childcare, with a thoughtful and structured strategy. It is essential that these requests are not only considered seriously but are also handled with a clear understanding of the broader implications. An arbitrary or dismissive response not only undermines the positive work environment but could also expose the school to claims of discrimination. 

In the context of indirect sex discrimination, several legal cases highlight the need for careful consideration of flexible working requests, especially when they relate to childcare. One such case is Thompson v Manors, where the refusal of a flexible working request by a mother to manage childcare responsibilities was ruled as indirect sex discrimination, resulting in a significant compensation award to the employee.

Another important case is Hughes v Progressive Support Limited, which also dealt with the denial of flexible working hours needed for childcare. The Employment Appeal Tribunal ruled in favour of the employee, recognising that inflexible working hours that do not consider an employee’s childcare responsibilities can constitute indirect sex discrimination​.

It is crucial for educational leaders to embrace this approach, recognising it as a progressive step towards a more adaptable and supportive teaching environment, rather than dismissing it with scepticism. Having a forward-thinking mindset can help foster a more engaged and satisfied workforce, thereby enriching the educational experience for all stakeholders.

Other legislation school leaders should be aware of: 

Protection from Redundancy (Pregnancy and Family Leave) Act 2023

  • Extends the protection against redundancy from notification of pregnancy to 18 months after the baby’s birth. Similar protection for employees returning from adoption or shared parental leave. 
  • Previously, if on maternity leave, adoption leave, or shared parental leave, and at risk of redundancy, employers had to offer a suitable alternative vacancy where it existed in priority to another person. 

Carer’s Leave Act 2023

  • From Saturday 6 April 2024, employees may take one weeks’ unpaid leave to care for a spouse, partner, civil partner, child, parent, a person who lives in the same household or a person who reasonably relies on them for care and who has a long-term care need (LTCN). 
  • LTCN is defined as a long-term physical or mental illness or injury, a disability as defined under the Equality Act 2010, or issues relating to old age, although there will be limited exemptions e.g. in the case of terminal illness. 
  • It is a day one right for employees.

Neonatal Care (Leave and Pay) Act 2023 – expected April 2025.

  • An entitlement to up to 12 weeks’ neonatal care leave (per parent) in addition to the other statutory leave entitlements such as maternity and paternity leave. 
  • It will be a day one right and statutory neonatal care pay will be provided for employees with at least 26 weeks’ continuous service and who have earnings not less than the lower earnings limit. 
  • It is suggested that it will be at the statutory flat rate (currently £172.48), or, if lower, 90% of the employees’ weekly earnings.

Article photo credit Scott Graham on Unsplash

Ben Munro is a member of Middle Temple. He has a keen interest in employment law as well as leadership and governance, and particularly champions women’s rights in the workplace, focusing on maternity rights, equal pay, and conditions. Outside of his professional life, Ben enjoys family time and watching his young son grow.