Work to rules

The Government is addressing issues of equality in the workplace: the extension of the request for flexible working and the Equalities Bill; changes to sex discrimination legislation and to maternity regulations. Brian Palmer assesses the impact on schools

The highly publicised review into flexible working has resulted in a recommendation that the current statutory framework is extended to parents of children up to the age of 16. The Government is now consulting on how to implement this recommendation. Flexible working can take many forms, including part-time working or job-share.

Although schools are likely to face more requests when this comes into force, it is important to remember that it will remain a right to request rather than a right to flexible working in itself. Any request should be seriously considered and, although schools still have fairly wide grounds for refusal, if a school does wish to reject a request on the grounds, for example, of the need for continuity, it will need evidence that there would actually be a detrimental effect on the quality of teaching.

This is because of the risks of claims under the sex discrimination legislation, if a request is turned down, for which there may be unlimited compensation if successful. A tribunal will scrutinise the reasons given by a school and will not accept sweeping statements that are not backed up by evidence. Schools may be concerned with the disruption to pupils’ learning by flexible working and the timetabling difficulties created. In addition, there is likely to be an extra cost in having to pay for overlap time so that staff may liaise effectively.

On the other hand, a reduction in hours often means less stress and fewer days lost through sickness and the possibility of retaining experienced staff who may otherwise leave and, perhaps, encourage teachers who have previously left the profession to return.

Face the changes
In 2007, following a High Court challenge by the Equal Opportunities Commission, the Government made amendments to its sex discrimination legislation, which came into effect in April 2008 and strengthened protection. These included broadening the definition of sexual harassment, a new liability for employers who fail to take reasonable steps to protect an employee from harassment by a third party (ie someone who is not the employer or another employee eg in the education sector, such as a parent) where the employer knows the employee has been harassed on at least two previous occasions. There is also an amended definition of discrimination on the ground of pregnancy or maternity, removing the formal need for a comparator and focusing on the requirement of less favourable treatment.

The High Court also agreed that the more limited rights to benefits for women on additional maternity leave (AML) in comparison with ordinary maternity leave (OML) did not comply with EU law. As a result, all women whose expected week of childbirth is on or after 5 October 2008 will be entitled to the same rights and benefits during AML as they currently enjoy during OML, with the exception of remuneration. This means they will accrue contractual holiday during AML and any other benefits which they receive during OML. They will also be entitled on return from AML to the same seniority and pension rights as they would have had if they had not been absent. Similar amendments to provisions in relation to employees entitled to adoption leave will also come into force in relation to any child who is expected to be placed for adoption on or after 5 October 2008.

Equal measures
Finally, the Government recently published its white paper on the proposed Equality Bill that will consolidate existing discrimination legislation into one Act. The proposals include extending positive action so that employers can take under-representation into account when selecting between two equally qualified candidates, although there will be no obligation to do so.

As ever, equality is high on the workplace and political agenda and it is important for schools to keep an eye on any developments.

Brian Palmer is a partner in Charles Russell’s Employment and Pensions Group. Brian can be contacted on brian.palmer@charlesrussell.co.uk

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