MODEL PERSONNEL PROCEDURES: DISCRETIONARY LEAVE Revised April 2008 Contact: Margaret Moore School Improvement Manager Tel: (01706) 925032 (Direct Line) or Gill Windsor Senior Schools Personnel Officer Tel: (01706) 925184 (Direct Line)
CONTENTS Page A. INTRODUCTION 4 1 Scope 2. Purpose 3. Equality 4. Delegated Decision Making B. GENERAL GUIDANCE 5 C. GUIDANCE ON SPECIFIC AREAS 6 1. Statutory Public Duties 6 2. Other Public Duties 7 3. Compassionate Leave 8 4. Time Off to Care for Dependants 9 5. Parental Leave 10 6. Paternity Leave 15 7. Statutory Requests for Flexible Working 19 8. Personal and Domestic Situations 23 8.1 Religious Observances 24 8.2 Transport Failure 24 8.3 House Removal 24 8.4 Urgent Family Business 25 8.5 Job Interviews 26 8.6 School Observation Visits 26 8.7 External Examiner/Verifier/Moderator 26 8.8 Examination Leave 27 8.9 Guest Lectureship 27 9. Medical Leave 28 10 & 11. Unpaid Leave 29 12. Deduction of Pay for former APTC & Manual Staff 29 13. Deducation of Pay - Teachers 29 3
A. INTRODUCTION 1. SCOPE The LA and the recognised Teacher Associations/Trade Unions have agreed that this procedure shall be recommended for adoption by the Governing Bodies of all schools with delegated powers of Local Management. 2. PURPOSE The guidance has been drawn up to help Headteacher s and Governors to operate an equitable and fair decision making process when dealing with requests from staff for discretionary leave. The guidance notes are presented in the following format: i) A quick reference table showing the main reasons for absence and an appropriate response; and ii) More detailed guidance running alongside to be taken into account when reaching your decision. Please note that the allowances given are for a full time member of staff. Part time staff would receive allowances pro-rata to the hours they work. 3. EQUALITY The Schools Personnel Service aims to regularly review all the policies and procedures we operate to ensure there are no negative equality impacts. Consultation with our customers is an important part of how we achieve this. If you feel, on reading this policy, that there may be a negative equality impact within your school, please tell us about this. Please also let us know if you need to access this policy in a different format. You can do this be contacting the following officers:- Margaret Moore School Improvement Manager Telephone number (01706) 925030 e-mail margaret.moore@rochdale.gov.uk Gill Windsor Senior Schools Personnel Officer Telephone number (01706) 925184 e-mail gill.windsor@rochdale.gov.uk 4. DELEGATED DECISION MAKING All decisions concerning whether leave of absence with or without pay should be permitted are the responsibility of the Governing Body. Employment law and nationally agreed conditions of service, which must be followed, confine some decisions about leave and pay. In other cases, locally negotiated agreements may exist and these must also be followed unless School Governing Bodies have negotiated their own agreements with all relevant trade unions. However, not all areas are covered by such agreements and some remain entirely at Governors discretion. Where statutory, national and local agreements exist, these are clearly shown in the Tables and the information given is current at the date of issue. It is recommended that the Governing Body delegate the responsibility for decision making to the Headteacher alone or to the Headteacher and Senior Leadership Team. The Headteacher may wish to seek the Governors (Resources (Staffing) Committee) approval in respect of more unusual or complex requests. 4
B. GENERAL GUIDANCE Governors will need to balance the needs of the pupils against the need to motivate staff and to maintain high morale when considering requests for leave of absence. Clearly the well-being of the pupils and their education must be the primary consideration, but there will be occasions when governors will wish to demonstrate their concern for the well-being of staff. Teachers and other term-time staff can be expected to utilise the flexibility that the holiday periods bring to accommodate many of the situations mentioned in the accompanying Tables. This is not the case with other staff who have more restricted annual leave entitlements. Any member of staff, regardless of their working pattern, may find it necessary to apply for leave of absence (paid or unpaid). Each individual case must be considered on its own merits. A high level of consistency is important when reaching a decision if staff are to be treated equitably. A sympathetic consideration of requests for leave of absence on compassionate grounds and where staff are not in a position to control or influence the timing of important activities, should be taken. It is the responsibility of each member of staff to ensure that arrangements for attendance at routine medical appointments, etc. are made at times that will cause minimum disruption to their school commitments. Only specialist or emergency treatment would normally warrant discretionary leave. The accompanying tables cover most situations but if an unusual request is made which is not covered, or the question of longer term leave arises, the help and advice of the Schools Personnel Service is recommended. 5
C GUIDANCE ON SPECIFIC AREAS C1 STATUTORY PUBLIC DUTIES (Employment Rights Act 1996) REASON FOR ABSENCE PERIOD OF NATIONAL/ PAID/UNPAID ABSENCE LOCAL & AGREEMENTS SOURCE OF FUNDING Duties as a JP Attendance at committee meetings as a member of: Up to a maximum of 18 absences (pro rata for part time staff) per academic year Statutory /Local for both Teaching & Support Staff Paid to the LA and refunded to the school a local authority a police authority a statutory tribunal an NHS Trust, District/ Regional Practitioner Committee Board of Prison Visitors School Governor duties Chairs & Vice Chairs of School Governing Bodies within Rochdale LA Up to a maximum of 18 absences (pro rata for part time staff) per academic year Local for both Teaching & Support Staff Paid Members of School Governing Bodies (excluding Chairs & Vice Chairs) within Rochdale LA Unpaid C.1 STATUTORY PUBLIC DUTIES (Employment Rights Act, 1996, Section 50) 1.1 An employer must allow reasonable time off to fulfil a statutory public duty taking account of: i) how much time off is required to perform duties as a whole and how much for the particular duty in question; ii) iii) how much time off the member of staff has already had for other public duties the impact of the member of staff s absence on the school. Headteacher s therefore have the ability to exercise discretion within the maximum limits set. 1.2 Please note that the law only refers to attendance at committee meetings, not to any other related attendance. Situations may occur where a member of staff asks for time off for meetings of an official working party. It is recommended that where the working party is an official subset of the committee, the request should be considered favourably within the confines of reasonableness. 6
C2 OTHER PUBLIC DUTIES REASON FOR ABSENCE PERIOD OF NATIONAL/ PAID/UNPAID ABSENCE LOCAL & AGREEMENTS SOURCE OF FUNDING Jury service or witness at court. As necessary. Statutory Paid (See note C2.1) (LA) Attendance at court as a defendant As necessary. Statutory Paid or plaintiff (except where the member of (See note C2.2) staff is in legal custody (LA) Election duties in connection with Council elections. 1 day to contest an election plus the day after Local for both Teaching & Support Staff Paid (See notes C2.2 & 2.3) Parliamentary & European elections Three weeks up to & including the day of election plus the day after 18 days out of the 195 working days per year Councillors duties Local for both Teaching & Support Staff Paid Councillors acting as Mayor or Chair of a major Committee Service in Non-Regular Forces - attendance at annual camp. Additional 36 days per year Paid Where employee entitled to 5 weeks annual leave/school holidays a year, 10 additional days permitted during term time. Employees with a leave entitlement 21 days (excluding 5 days for 5 years continuous service). Employees with a leave entitlement 23 days (excluding 5 days for 5 years continuous service). Employees with a leave entitlement 23 days (excluding 5 days for 5 years continuous service). Local for both Teaching & Support Staff (See note C2.3) Paid for 10 days Paid for 10 days Paid for 8 days balance unpaid or part of normal leave entitlement Paid for 5 days balance unpaid or part of normal leave entitlement C.2 OTHER PUBLIC DUTIES 2.1 The member of staff should acquire a claim form from the court. The form is then given to the Employer to sign. The court will then reimburse the individual for loss of earnings/subsistance. The Employer will then make appropriate deductions from the individuals salary. 2.2 Where a member of staff is on paid discretionary leave and receives an allowance for work done (e.g. juror s or councillor s allowance), any such monies must be paid back to the School. Where discretionary leave is granted without pay, salary will be deducted for working days only. 2.3 The onus for recovering allowances lies within the school. The Headteacher authorising the absence should advise the members of staff of their responsibility to pay any allowance back to the school and explain the process. It is then the school s responsibility to ensure recovery. 2.4 Service in Non-Regular Forces- attendance at annual camp. Wherever possible, staff should negotiate to attend a camp outside term time. 7
C3 COMPASSIONATE LEAVE REASON FOR ABSENCE PERIOD OF NATIONAL/ PAID/UNPAID ABSENCE LOCAL & AGREEMENTS SOURCE OF FUNDING Death of immediate family, i.e. mother, father, husband, wife, partner, son, daughter, brother, sister, grandparent or grandchild. Up to 5 days maximum including day of funeral. Local for both Teaching & Support Staff Paid Where employee is appointed Executor of the Will of any of the above mentioned and is required to make all the necessary arrangements for the funeral, or has a long distance to travel to the funeral. Up to 5 days maximum if this has not already been granted on account of the death. Paid Death of aunt, uncle, nephew, niece, cousin, brother-in-law, sister-in-law, spouse s/partner s close relative. Up to 2 days maximum including day of funeral (see note C3.2). Paid Close friend. 1 day per year. Paid C.3 COMPASSIONATE LEAVE 3.1 Each individual case should be considered on its merits, taking into account such factors as existence of other relatives to assist with funeral arrangements; closeness of family and relationship and circumstances of the bereavement. The family relationships given in the Table are therefore only for guidance. 3.2 The periods of leave indicated in the Table may, by discretion, be extended up to a maximum of five days for any one bereavement if it is felt that the factors surrounding the case warrant this. 8
C4 TIME OFF TO CARE FOR DEPENDANTS REASON FOR ABSENCE PERIOD OF NATIONAL/ PAID/UNPAID ABSENCE LOCAL & AGREEMENTS SOURCE OF FUNDING 1. To make arrangements for the provision of care: for a dependant who has fallen ill or been injured, or where an existing condition has deteriorated; or in the event of unexpected disruption or termination of arrangements for care of a dependant. Up to 2 days per academic year to make arrangements for ongoing care but see notes C4.5-4.7 for exceptional circumstances Minimum legal requirement plus local for paid leave for both Teaching & Support Staff Paid for 2 days only per academic year thereafter unpaid 2. The facility to have time off to deal with a routine incident which involves a child of the employee and which occurs unexpectedly at a time when an educational establishment is responsible for that child. (This includes unexpected availability of a childminder or regular carer). As necessary Minimum legal requirement Unpaid C.4 TIME OFF TO CARE FOR DEPENDANTS (Section 57 (A) of the Employment Rights Act 1996) 4.1 A Dependant is defined as a spouse, child, parent or person living in an employee s household, other than as an employee, tenant or lodger. However, when it comes to making arrangements for the provision of care as set out in 1. in the box, dependant can be defined as any person who reasonably relies upon the employee to make arrangements for the provision of that care. 4.2 If the employee only needs an hour or so to make necessary arrangements, they may ask to make the time up later, rather than take a full day or half day s leave. This should be considered on the merits of each case. 4.3 The employee must request the leave as soon as reasonably practicable and must give the reason for and likely length of that absence. It is permissible for this to be done after the absence if it could not reasonably have been done beforehand. 4.4 When considering requests for this leave, Headteacher s should take into account the availability of other carers within the family unit and as appropriate the amount of the remaining holiday entitlement of the member of staff making the request. 4.5 In exceptional circumstances, carer s leave may be extended up to a maximum of 5 days per annum at the discretion of school management. 4.6 The employee will have recourse to an Employment Tribunal if reasonable time off is not granted. 4.7 If it proves impossible to make alternative arrangements, for example, in the case of a terminally ill relative or very sick child, then up to 30 days unpaid leave may be granted subject to leave entitlement. (See Section C9). 9
C5 PARENTAL LEAVE REASON FOR ABSENCE PERIOD OF NATIONAL PAID/UNPAID ABSENCE LOCAL & AGREEMENTS SOURCE OF FUNDING To enable parents to care for their young child/children by making it easier to reconcile work and family life Each parent can claim up to a total of 13 weeks over 5 years* (pro rata for part timers) in respect of each child who is under the age of 5 years. *18 weeks over 18 years if the child is disabled (see notes C5.1 to 5.3 for definitions and eligibility) 28 days prior notice has to be given, 21 if child disabled. (see note C 5.6) Minimum legal requirement Unpaid. C.5 PARENTAL LEAVE (Employment Rights Act 1996 and Maternity and Parental Leave (Amendment) Regulations 2002) 5.1 Definition of Parent Those with responsibility for a child. Under the meaning of the Children Act 1989 this includes: the mother of the child the father of the child if he was married to the mother at the time of the birth or he is registered as the child s father on the birth certificate. the father (if not covered by the above) if he has acquired parental responsibility under the Children Act 1989. This is done either by a court order or an agreement between the mother and father which complies with certain legal requirements. a guardian appointed under Section 5 of the Children Act 1989 adoptive parents or foster parents 5.2 Employee s Eligibility for Leave An employee must have no less than one year s continuous service with an organisation covered under the Education (Modification of Enactments Relating to Employment) Order 2003 to qualify for this leave. Even if leave started with another employer, the employee still has to complete one year s continuous service under the Order before taking the balance of their leave entitlement. With the one year s continuous service qualification, an employee is entitled to 13* weeks for each of their children who are under 5 years of age. For employees who work part time, the leave will be pro rata to the hours worked. *For a disabled child the entitlement is 18 weeks for each child under the age of 18 years. Each parent is eligible for the leave entitlement in respect of each child including each child of a multiple birth. 5.3 Children which qualify The child must be under 5 years of age at the time the leave is taken. This includes adopted children; if the child is disabled (defined as one for whom the parents receive disability living allowance), leave can be taken any time up to the child s 18 th birthday. You may request evidence of the child s date of birth, their responsibility for the child and if applicable, the child s entitlement to a disability living allowance. (See 5.5 and Appendix A). 10
5.4 Evidence of Employee responsibilities The Headteacher may request evidence of the child s date of birth, the employee s relationship to the child and, if applicable, the child s entitlement to a disability living allowance. 5.5 Notice to be given by the employee 28* days written notice of intention to take leave must be given to the Headteacher, specifying when the leave is to begin and end. * (For parents of disabled children the notice period is 21 days on the basis that it would be unreasonable to expect additional notice from such parents when they are entitled to take parental leave in periods of less than one week). If the employee meets the qualifying conditions and gives the required notice, the employee is entitled to take the leave. It cannot be refused, but it can be postponed under certain circumstances (see 5.9). A discretionary proforma entitled Application for Parental Leave is provided for the first time an individual applies in your school to help collect the required information. (See Appendix B). 5.6 How Leave is to be taken Leave must be taken in blocks of one week at a time, except for a disabled child where it may be taken in multiples of one day. This also applies to part time staff. There is a maximum of 4 weeks per child (unless disabled) that can be taken in any one year - a year commences with the birth date or adoption date of the child. This maximum does not apply to parents of a disabled child - disability being defined as in para 5.3. A popular option may be for employees to add 4 weeks parental leave on to the end of their maternity leave period. 5.7 Definition of a Week Where an employee s working pattern does not vary, a week is the period which he/she normally works. Where the working pattern normally varies from week to week or over a longer period, or if the employee is normally required to work in some weeks and not others, a week is the total of all periods in which he/she works, divided by 52. 5.8 Postponement of Leave A Governing Body has the power to postpone the leave for up to sixth months if it can demonstrate that to take leave at a particular time would be unduly disruptive. An example of this would be leave taken during the run up to and sitting of National Tests. However, if the planned leave is for the birth of the child or for immediately after the child is born or placed for adoption, it cannot be postponed provided that notice requirements have been met. If postponement is to be enacted, the Governing Body must give the reason for postponement to the employee within 7 working days of having received the request. If the postponement takes the leave past the child s 5 th birthday, the leave can be taken after the birthday. The dates the leave is finally taken must be in agreement with the employee. If no agreement can be reached, the Governing Body reserves the right to determine the dates. 5.9 Return to Work If the parental leave taken is for 4 weeks or less, the employee has the right to return to the same job as they left at the start of the leave and to retain pension rights. If the leave taken is more than 4 weeks in total, then the employee is entitled to return to the same job unless this is not reasonably practicable. Where this is the case, the employee must return to a job that is suitable and appropriate and on conditions no less favourable than the one they left. The employee remains under contract during the leave (except for remuneration) and cannot suffer any detriment as a result of taking or seeking to take the leave. Employees have recourse to an Employment Tribunal if time off is not granted. 11
12 5.10 Records Accurate records of leave taken must be kept in schools as entitlements can be transferred from one employer and also from one school to another. It is suggested that one card should be filled in for each child as this will be easier to keep track of when the various entitlements start and finish. A suggested format for this is given overleaf (Appendix A).
APPENDIX A PARENTAL LEAVE RECORD Employee s Name: Child s Name: Child s DOB: 5yrs* end: Other children qualifying? Yes/No (If yes, pin cards together) Yr 1 Date Leave to Date Leave to Number of Cumulative total of begin end weeks (days) (days) taken Yr 2 Yr 3 Yr 4 Yr 5 *or date of 18 th birthday if child disabled Schools Personnel Service will be asking you for leave records as staff leave the service of the Authority. It is therefore important that entitlement to parental leave is established on appointment and confirmed with the previous employer. False declarations should be regarded as a disciplinary offence. 13
APPENDIX B APPLICATION FOR PARENTAL LEAVE SCHOOL This form need only be completed the first time you apply for this leave with your current school. 1. I wish to apply for parental leave. (There is no need to specify dates here as this information should already have been given to your Headteacher) 2. I have child / children (please complete the relevant number) who was/were born on or after 15 December 1999 and is/are under the age of 5 years or 18 if disabled. (Please submit a copy of the birth certificate/s attached to this form and if your child is in receipt of disability allowance, proof of this) 3. If you are not named on the birth certificate please confirm into which of the categories set out below you fall: Category A father that was married to the mother at the time of birth A parent who has acquired parental responsibility under the Children Act 1989 A guardian appointed under Section 5 of the Children Act 1989 An adoptive parent A spouse or partner of any of the above who is living with the child A foster parent Please tick if applicable 4. I confirm that my purpose in requesting leave is for caring for my child/ children. 5. I have taken days/weeks parental leave with previous employers. (This may already have been confirmed via reference from your previous employer) 6. I am /am not employed by any other school or Service of the Council. (Please delete as applicable) If you are so employed please give details 7. I understand that any false information that I give on this form may result in disciplinary proceedings being taken against me. 14
C6 PATERNITY LEAVE REASON FOR ABSENCE PERIOD OF NATIONAL/ PAID/UNPAID ABSENCE LOCAL & AGREEMENTS SOURCE OF FUNDING This is separate from Parental Leave and is to allow partners time to assist at home following the birth of a child or the placement of a child for adoption. Service eligibility requirements apply (see C6.3 ) Either 1 week or 2 consecutive weeks leave to be taken in one block, but must be completed either within 56 days of the actual date of the birth of the child or the Expected Week of Childbirth (if the birth is before the Expected Week of Childbirth), or placement with the adopter. National Agreement for Support Staff Local Agreement for Teachers Teachers: 1 week with normal pay followed by one week on Statutory Paternity Pay if over Lower Earnings Limit. Support Staff: 1 week maternity support leave on normal pay followed by one week on Statutory Paternity Pay if over Lower Earnings Limit. Leave can start on any day of the week Note: There is a statutory application process which must be followed. C.6 PATERNITY LEAVE The Maternity and Parental Leave Regulations (Amendment) 2002 provides for new rights to take up to two weeks paid paternity leave following the birth of a child or the placement of a child for adoption. This is separate from, and in addition to, Parental Leave. The provisions relate to employees whose children were either born, or were placed for adoption, on or after 6 th April 2003 even if the Expected Week of Childbirth (EWC) was before this date; or whose child was born earlier, where the (EWC) was on or after 6 th April 2003. 6.1 ELIGIBILITY FOR LEAVE An employee must satisfy the following conditions in order to qualify for paternity leave: to have, or expect to have, responsibility for the newborn child s upbringing; (newborn includes a child born after 24 weeks of pregnancy) be the biological father of the child, the mother s husband or partner, including a female partner in a same sex couple; (An employee will be deemed to have satisfied the condition that he is the biological father of the child or the mother s husband or partner, if he would have satisfied it but for the fact that the child s mother has died). have 26 weeks continuous service by the end of the 15 th week before the expected week of childbirth. (An employee will be deemed to have satisfied the 26 weeks service qualification if he would have satisfied it but for the fact that the child was born before the 15 th week before the EWC; or the child was stillborn after 24 weeks of pregnancy or has died). 15
6.2 THE LEAVE ENTITLEMENT An employee has the option of taking either one week or two consecutive weeks leave, but must be completed either within 56 days of the actual date of the birth of the child (or the EWC if the birth was earlier than the EWC), or placement with the adopter. Whether taking one or two weeks, the leave must be taken in a single block. A week means any period of 7 days and may not be taken in odd days. The leave can start on any day of the week. Only one period of leave will be available to employees irrespective of whether more than one child is born as a result of the same pregnancy or children placed together as part of the same placement. Where an employee is entitled to paternity leave and adoption leave, he or she cannot exercise both statutory rights, but may choose to exercise whichever is the most favourable. 6.3 NOTIFICATION OF REQUEST FOR PATERNITY LEAVE 6.3.1 The employee is required to inform the School of their intention to take paternity leave and then to send the completed Form Paternity 1 to the Personnel Administration Service (People Management, Shared Services) as soon as possible and in any case no later than the end of the 15 th week before the baby is expected (unless not reasonably practicable). The notification will state: the week the baby is due, or if the birth has already occurred the date of the child s birth whether they wish to take one or two weeks leave the date they wish their leave to start a declaration that he/she is in an enduring relationship with the mother, will be responsible for the child s upbringing and will be taking time off to support the child s mother or to care for the child. (The employee is able to change their mind about the start date after notification, providing that they tell the School at least 28 days in advance of the change unless this is not reasonably practicable. The employee s right to pay may be adversely affected) 6.3.2 It is permissible for an employee to request a period of parental leave to be added to Paternity Leave to give a longer period to support mother and child. 6.4 PAY DURING PATERNITY LEAVE Income during maternity leave can come from two sources: 6.4.1 Occupational pay Maternity support pay for staff under NJC Conditions For these employees, mainly support staff; there exists a provision for maternity support leave. This is similar to Paternity Leave and will no doubt be reviewed in the light of the introduction of Statutory Paternity Leave, but it does allow the first 5 days leave with normal pay to a child s father, partner, or nominated carer of the pregnant woman at or around the time of birth. If an employee meets the eligibility criteria for paternity leave as well as Maternity Support Leave (and this includes single sex partners) they would be entitled to one week Maternity Support Leave with normal pay plus one week Paternity Leave at the standard rate of Statutory Paternity Leave. Local agreement for teaching staff This gives teaching staff the equivalent of the maternity support leave which allows the first 5 days leave with normal pay to a child s father, partner, or nominated carer of the pregnant woman at or around the time of birth. 6.4.2 State benefits in the form of either Statutory Paternity Pay (SPP) available to an employee who: meets the qualifications for paternity leave; has 26 weeks continuous service at the 15 th week before the EWC; and has earnings above the Lower Earnings Limit. More detailed information about pay can be obtained from Personnel Administration Service (Learning Housing & Cultural Support). 16
6.5 CONTRACTUAL TERMS 6.5.1 The terms and conditions of the employee s contract of employment continue throughout Paternity Leave with the exception of remuneration. This exception is because separate paternity pay arrangements apply. 6.5.2 Employees are entitled to return to the same job following paternity leave on terms and conditions no less favourable than those which would have applied had they not been absent. 6.5.3 Employees will be protected from suffering unfair treatment or dismissal for taking or seeking to take paternity leave. Employees who believe that they have been treated unfairly will be able to complain to an employment tribunal. 17
PATERNITY 1 ROCHDALE METROPOLITAN BOROUGH COUNCIL PERSONNEL ADMINISTRATION SERVICE (LEARNING HOUSING & CULTURAL SUPPORT). REQUEST TO TAKE PATERNITY LEAVE To be completed and submitted to your school no later than the end of the 15 th week before the expected week of childbirth Name: Payroll Number: Address: Telephone No: School or Service: Post title: Expected week of childbirth (EWC): OR Date baby was born if birth has already occurred: How many weeks leave do you wish to take? (Please tick) ONE TWO Date you wish your leave to start: (This can be any day of the week) Declaration: I am (delete as appropriate) the biological father of the child / mother s husband or partner and will have responsibility for the new born child s upbringing and will be taking time off to support the child s mother or to care for the child. Signed: Date: 18
C7 KEY STAGES IN THE PROCESS FOR STATUTORY APPLICATIONS FOR FLEXIBLE WORKING Employee wishes to request flexible working arrangements Employee to check eligibility criteria Employee to discuss request for flexible working with the Headteacher Employee applies in a letter of application for statutory flexible working Yes Does School agree to request outright? No Within 28 days of receipt of request Head teacher/ Nominated Person to give employee written notice of acceptance, specify variation & date to take effect (C7.4.1 Refers) Within 28 days of receipt of request Head teacher/ Nominated Person to have meeting with employee to discuss request. Employee entitled to representation (C7.4.2 Refers) Copy of letter to Personnel Administration Service (People Management) Yes School agrees to request? No Within 14 days of the meeting Head teacher/ Nominated Person to give employee written notice of agreement. Specify variation & date to take effect. (C 11.4.5 refers) Within 14 days of the meeting Head teacher/ Nominated Person to give employee written notice of rejection including the specified ground/s on which rejected explaining why those grounds apply & the right of appeal. (C 7.4.6. &.4.7 Refer) Copy of letter to Personnel Administration Service (People Management) If employee wishes to appeal. Appeal to be lodged 14 days from receipt of above notification (C7.6 Refers) Appeals Committee to meet within 14 days of appeal being lodged. (C7.6.2 Refers) Employee to receive written confirmation of outcome of appeal within 14 days (C7.6.5 Refers) 19
C7 STATUTORY REQUESTS FOR FLEXIBLE WORKING 7.1 New Right to Apply for Flexible Working From April 2003 mothers and fathers of children under the age of six, or of disabled children aged under eighteen, have the right to apply for flexible working arrangements so that they can balance their childcare responsibilities with work commitments. From April 2007 the legal right to request to work flexibly has been extended to cover carers of adults as well. Employers have a statutory duty to give serious consideration to such requests and are able to refuse only when there is a clear business reason. Changes requested can relate to hours, times or place of work. If agreed, a change will be a permanent variation of contract and there will be no automatic right for the employee to revert back to the former arrangement, unless otherwise agreed. The platform for this new statutory right comes from the Employment Act 2002, which inserts new provisions into the Employment Rights Act 1996. These lay down a specified framework to be followed by employees and employers when making and considering flexible working requests. The new provisions cover: the eligibility criteria which must be met in order for an employee to apply and the application process; the employer s duties in relation to an application; the right for an employee to take their case to an Employment Tribunal; and The remedies if the Employment Tribunal finds that an application has not been dealt with correctly. 7.2 ELIGIBLITY 7.2.1 The right only applies to employees. Agency workers supplied to an employer by an agency are excluded. 7.2.2 An employee must: have 26 weeks continuous service at the date the application is made; be the parent, adopter, legal guardian, foster parent of a child, or be married to, or the partner of one of the aforementioned, living with the child in an enduring family relationship; the child in question must be aged under six or a disabled child aged under eighteen; be responsible for the upbringing of the child; the latest date an application can be made is 14 days before the day on which the child reaches either the age of 6, or, if disabled up to 18. have caring responsibilities for an adult relative as defined by the Department for Business Enterprise and Regulatory Reform (formerly DTI) and be either the child s mother, father, adopter, guardian or foster parent, or married to or the partner of the child s mother, father, adopter, guardian or foster parenbt or the carer for an adult relative, defined as parents, parents-in-law, adult child, adopted adult child, siblings (including in-laws), uncles, aunts, grandparents or step-relatives. 7.2.3 The change to terms and conditions is only valid if it relates to: the hours the employee is required to work; the times the employee is required to work; or the place the employee is required to work; and the request is for the specific purpose of caring for a child/adult. 7.2.4 If an employee has already made a request under the provisions, he/she cannot make another until 12 months after the date the previous request was made. 7.3 THE APPLICATION PROCESS 7.3.1 Employee to approach Headteacher informally to discuss flexible working prior to submitting a written application. 7.3.2 Employees must submit a written application to the Headteacher of the School confirming that the eligibility requirements have been met. The application must be signed and dated. Please note that an application will be taken as having been made on the day it is received. 7.3.3 In line with statutory requirements the written application must request details of the changes desired, the effect the change may have on the employer, if any, and how they feel any such effect might be dealt with, i.e. how the request can be accommodated; and whether any previous application to the current employer has been made and if so, when. 20
7.4 THE SCHOOL S DUTIES IN RELATION TO AN APPLICATION 7.4.1 If the Headteacher or his/her nominated person agrees to the request, within 28 days of receiving that request he/ she must notify the employee in writing of the variation agreed and the date it is to take effect. 7.4.2 If the Headteacher or his/her nominated person does not agree to the request, he/she is required to arrange a meeting with the employee to discuss the request within 28 days of receiving that request. This provides an opportunity to discuss any problems or alternatives and to encourage the finding of a mutually acceptable solution. It is important to emphasise to the employee that any change will be viewed as a permanent change to the contract, and that there is no automatic right to revert to the original contractual arrangements at a later stage, unless otherwise agreed. 7.4.3 If a meeting is to take place, the employee has the right to be accompanied at that meeting by either a union or professional association representative or a workplace colleague. 7.4.4 Following the meeting, the Headteacher or nominated person, must give the employee written confirmation of the decision within 14 days of the meeting. 7.4.5 Where the Headteacher or nominated person agrees to the contract variation, the written confirmation must specify the agreed variation and the date from which the variation is to take effect. A copy of the letter of confirmation must be sent immediately to People Management, Personnel, Shared Services so that the necessary contractual variations and any associated changes to pay can be made. 7.4.6 Where it is decided to reject the contract variation, the letter of confirmation must set out: the grounds, which must be one or more of the specified grounds set out in para 7.4.7 below; an explanation as to why those grounds apply; and the right of appeal. 7.4.7 The specified grounds are: the burden of additional cost; the detrimental effect on the ability to meet pupil needs or customer demand; inability to re-organise work amongst existing staff; inability to recruit additional staff; detrimental impact on quality or performance; insufficiency of work during the periods the employee proposes to work; or planned structural changes 7.5 CAN TIME LIMITS BE EXTENDED? 7.5.1 The employer or employee may agree to an extension of any of the time limits referred to in the application and decision making process. The agreement must: be recorded in writing by the Headteacher or nominated person; specify the time limit to which the extension relates; specify the date on which the extension is to end; be signed and dated; be sent to the employee. 7.5.2 Where the person who would normally consider the application is absent on leave or sick leave, or the school is closed at the time the application is received, the time limit for the meeting to discuss the application, or response if no meeting is needed, can be extended to the date falling 28 days after the date on which that individual returns to work. 7.6 EMPLOYEE S RIGHT OF APPEAL 7.6.1 Where an employee is dissatisfied with the school s handling of an application, he /she has the right to appeal, in writing, within 14 days of being notified of the decision, stating the grounds for appeal. 7.6.2 Where an appeal has been lodged, the Appeals Committee should meet within 14 days after the date on which the appeal was served. Normal appeals procedures will apply. 7.6.3 The employee has the right to be accompanied at the appeal meeting by either a union or professional association representative or a workplace colleague. No full time regional officials are permitted. The representative/colleague will have the right to address the meeting and to confer with the employee during the meeting, but will not be permitted to answer questions on the employee s behalf. 21
7.6.4 If the employee s representative/colleague is unavailable at the time proposed for the meeting, the Headteacher must postpone the meeting to a suitable time when all the parties are available, provided that this is within 7 calendar days of the day initially proposed by the Headteacher. 7.6.5 Following the meeting, the employee must be given written confirmation of the decision within 14 days of the meeting. If the appeal is upheld the written confirmation must specify the variation agreed and the date from which it is to take effect. If the appeal is not upheld, the confirmation must state the grounds on which this decision was reached. 7.7 IN WHAT CIRCUMSTANCES CAN AN APPLICATION BE CONSIDERED AS WITHDRAWN? 7.7.1 An employer must treat an application as withdrawn where the employee has: indicated either verbally or in writing that they wish to withdraw the application; or where the employee has failed to attend a meeting to discuss an application or appeal more than once; or an employee has unreasonably refused to provide the school with information required by the school in order for it to assess whether the variation requested by the employee should be agreed. 7.7.2 The Headteacher or nominated person must confirm the withdrawal of an application to the employee in writing unless the employee has provided written notice of their wish to withdraw. 7.8 ADVICE ON DEALING WITH APPLICATIONS FOR A RETURN TO ORIGINAL CONTRACTUAL ARRANGEMENTS 7.8.1 The legislation was made in the anticipation that all requests would be for permanent changes to working arrangements. However, it may be that a full time employee might want to reduce hours for a short period say two years and then want to return to the original contractual arrangements at some stage. 7.8.2 To achieve this the employee may make an initial request to reduce hours and then plan to make a separate one at a later stage to return to full time working. Each request would have be considered separately, on its merits, within the given framework. 7.8.3 However, the employee could make the whole plan explicit in the first request. Where this is the case, it is possible to build in a review point at which consideration will be given to a return to the original contractual conditions at an agreed date. This would mean that the School would have a duty to consider a return to the original contract at this date, but would not be obliged to agree to it. Remember an employee has no legal right to demand a return to the original contract. 7.8.4 The Government have advised that in a minority of cases, those employees with a legal entitlement who have exhausted the Council s procedures will have the grounds to pursue their request with third party involvement. This could be by referring their request to ACAS or by using another form of dispute resolution. 7.9 APPLICATION TO AN EMPLOYMENT TRIBUNAL 7.9.1 An employee can make a claim to a Tribunal on any one of the following grounds: the reason for rejection was not one of the specified grounds; the decision to reject was based on incorrect facts; the employer failed to follow the statutory procedural steps (as set out above. Eg. Failed to hold an initial or appeal meeting, or failed to give notice of a decision within a given timescale). 7.9.2 The legislation does not give tribunals the power to question the commercial validity of the employer s decision, but it does allow for the case to be sent back to the School for reconsideration where the procedure has not been correctly followed or where the school has failed to explain why the business grounds apply. A tribunal can also make an award of compensation of up to eight weeks pay against the employer. 22
C8 8.1 PERSONAL AND DOMESTIC SITUATIONS REASON FOR ABSENCE PERIOD OF NATIONAL/ PAID/UNPAID ABSENCE LOCAL & AGREEMENTS SOURCE OF FUNDING Attendance observance of a principal religious festival. A maximum of 2 days per academic year. None 1 day with pay and 1 day without pay (unless deemed as a statutory holiday) in any one academic year. See note 8.1 8.2 Transport failure or car breakdown. As unavoidably necessary None 8.3 Further Guidance House removal where removal falls on a working day. (a) For members of staff recently appointed and moving into the area, requiring up to 3 days absence Local for Teachers. None for Support Staff. Teachers One day with salary or as advised within the Schools Relocation Policy. (b) For the staff where (a) does not apply Support Staff At the discretion of the Headteacher/Governors or as advised within the Schools Relocation Policy. 23
C.8 PERSONAL AND DOMESTIC SITUATIONS 8.1 Religious Observances There are no local agreements to cover this area, therefore there is no specific entitlement. The Council for Racial Equality s Code of Practice advises that where employees have particular cultural or religious needs which conflict with existing work requirements, there is a need to consider whether it is reasonably practicable to vary or adapt these requirements to enable such needs to be met. This would cover time off for religious observance (prayer times or religious holidays). The Race Relations Act does not specifically cover religious discrimination but work requirements would generally be unlawful if they have a disproportionately adverse effect on particular racial groups and cannot be shown to be justifiable. School holidays are based around the major Christian festivals. Christians would not be granted more than these. A maximum of two days discretionary leave for staff of other religious faiths may be allowed to enable them to observe their main religious festivals e.g. Eid, Diwali, Indian or Chinese New Year and Passover. Requests for regular (weekly) leave of absence should be approved if it is possible to manage the member of staff s absence and an alternative work pattern is possible. Refusing such a request would be justifiable if it could be demonstrated that the absence would have an adverse effect on pupil entitlement. 8.2 Transport Failure/Weather Disruption/Local or National Emergency Situations These are situations that must rely entirely upon managerial discretion as no two cases are the same. The first priority in all cases is the safety and welfare of staff and pupils. If there is a major disruption to the public transport system because of a strike or bad weather then it is recommended that staff who use this means of transport and have no other alternative, are treated sympathetically. Each individual case should be considered on its own merits, taking into account such factors as distance from home to school. It is expected that employees of the Council should report to their nearest school within the Borough to sign in and offer their services until the disruption or bad weather clears which will enable them to return to their normal place of work. Managers must make decisions in accordance with the Schools/LA Emergency Plan. Strategies to deal with this type of situation should be contained within the Schools Emergency Plan and be made available to staff in your school. Equally, if a member of staff s car breaks down and they make every effort to come into work as soon as possible by other means, they too should be treated sympathetically, although you may wish to seek some recompense for the hours lost. In all other cases the guidance rule should be that staff should not be paid for work that they have not done. School closure decisions made by HTs following consultation with the Chair of Governors are to be notified to the LA immediately. 8.3 House Removal This facility is designed for situations where the removal cannot be on any other day than a working day. Discretionary leave can only be given within 6 months of the commencement of employment for APTC staff. 24
8.4 PERSONAL AND DOMESTIC SITUATIONS (Continued) REASON FOR ABSENCE PERIOD OF NATIONAL/ PAID/UNPAID ABSENCE LOCAL & AGREEMENTS SOURCE OF FUNDING Urgent family business (e.g. house Nominally 1 day per None 1 day per incident Paid burglary, explosion, fire) incident. May be thereafter Unpaid extended if necessary. 8.5 Job Interview (NB in a redundancy situation the Redundancy Policy will override this situation) As necessary but for Public Sector appointments only Local for both Teaching & Support Staff 5 days Paid in any academic year thereafter Unpaid 8.6 Visits of necessary observation to another school (e.g. as part of an interview or result of securing a new job). At Governors discretion None 5 days Paid therafter Unpaid 8.7 External examiner, marker, awarder; external moderator; setters or revisers of question papers; the exam board s instructors or presenters of INSET courses; members of committees/subject panels. At Governors discretion National for Teaching Staff. None for Support Staff Paid (See note C 8.7) NB. Support staff on NJC Scale 6 and above need prior written authority from their line manager. 8.4 Urgent Family Business This is to allow staff time to meet with the police, arrange emergency housing for the family etc. It is only intended to cover emergencies, not general visits to solicitors, sick relatives etc. 25
8.5 Job Interviews Many interviews span more than one day and a member of staff seeking alternative employment may have two or three interviews. Headteachers are recommended to be reasonable about such requests. If a member of staff s absence is excessive and becomes unreasonable and/or unmanageable, then it would be appropriate to bring this to his/her attention and ask them to be more selective in their applications. He/she should also be encouraged to seek feedback after unsuccessful interviews and be given the opportunity to talk this through. The member of staff will need to provide evidence of attendance of the interview/observation to the Headteacher prior to attendance. In a redundancy situation, staff are automatically allowed time off for seeking redeployment and for finding out about jobs. 8.6 School Observation Visits This may occur when staff apply to other schools for jobs, or having secured a job, they may be invited to functions to get to know the school. Such exchanges should not be discouraged, but once again, Headteachers should determine whether the number and frequency of such requests are reasonable and act accordingly. 8.7 External Examiner /Moderator etc This applies to work done outside that already stipulated as part of a teacher s role in the current Pay & Conditions document. Staff should be encouraged to plan well ahead and to give schools good notice of their commitments to minimise disruption. Many staff like to do this work as a useful form of personal professional development. There are also other useful spin offs for the school. Authorisation of discretionary leave, with or without pay, for these activities is totally at the discretion of the Governors/Headteacher. However, it is recommended that every effort should be made to release staff within the constraints of the needs of the school. When making decisions, Headteacher s are urged to be firm but fair. Fees are normally paid for this work. It is recommended that where absence is approved with salary, any fees other than for work done in a member of staff s own time should be paid back to the school. 26