We are witnessing a workplace revolution in the UK. The extraordinary events of the last 18 months have seen a dramatic increase in home and flexible working for UK employees. COVID has demonstrated, in real time, the options, and potential opportunities for employees and employers to embrace a hybrid way of working. The opportunity to work flexibly is no longer seen as a generous perk but a smart alternative that can bring benefits to both the employer and employee. One form of alternative working pattern that is not new, but is seeing a resurgence in requests, is Term-time Only [TTO] working.
Of course, flexible working means more than working from home. Flexible working can also encompass reduced hours, compressed hours and much more. Indeed, many working parents have already utilized these flexible arrangements during the pandemic. This is due to the closure of schools and the need to balance work and caring commitments.
We are all trying to juggle our professional careers, our need to earn a wage and our personal commitments. TTO working is just one solution, that directly tackles the challenge posed by school holidays in the UK.
What Is it?
Principally, Term-Time Only working can be a full or part time contract, whereby the employee works during periods in which schools and colleges are open. Conversely, they would not be required to work during the school holidays. Mostly found in the Education Sector, TTO contracts are increasingly being requested outside of this industry.
Typically, TTO individuals work 39 weeks per year, and will take 13 weeks as holiday. However, both parties must adjust and agree to this. For example, a shorter summer holiday absence or by working some or all the half term holiday periods. TTO workers, by agreement with their employer, retain their continuous service throughout the school holidays. The standard principle of TTO working is that holiday entitlement is taken during the recognized school holidays and balance up the 13 weeks with unpaid leave.
How Can Employees Request Flexible Working?
Since 2014, employees with at least 26 weeks’ continuous employment have been able to make a statutory formal request, in writing, for flexible working, for any reason. However, as of the 23 September 2021, the Government is now considering making the right to request flexible working a default day-one right. It is also possible for employers to allow their employees to make informal flexible working requests outside of the statutory scheme.
Calculating Holiday Pay
Part time workers are equally entitled to 5.6 weeks’ paid holiday, just in proportion to the hours they work (’pro rata’).
As of 6 April 2020, holiday pay for term time workers without fixed hours should be based on the average hours worked during the 52 weeks before, not counting any weeks not worked and for which no pay was received.
Calculating Salary
Typically, an individual’s pro-rated annual salary, is paid in regular instalments throughout the year, to avoid non-payment months. Employers should note that pay that has been averaged and is paid throughout the year in equal instalments may affect the calculation of, and entitlement to, other benefits.
Employees can request that they are only paid during term time. You can calculate this on the actual number of hours worked. For the avoidance of doubt, this may result in periods where the employee receives no payment at all. You can provide overtime payments when agreed upon.
To date there is no standard industry practice to calculate Term-Time Only working salaries. Wurkplace is happy to provide guidance on recommended calculative processes, but the methods must be used consistently across the business. This may require taking legal advice.
Training, performance assessments and team briefings
Term-time employees may attend training, performance assessments, team briefings etc. Every effort will be made to schedule mutually convenient dates during term time or to arrange alternative methods of attendance, such via online video conferencing. However, this may not always be possible, in which case the organisation will provide adequate notice of dates on which the employee will be required to attend the workplace, to enable the employee to make alternative care arrangements.
Accommodating This Request
For some organizations this style of contract will require a considered and, in some cases, significant shift in their culture. However, establishing alternative ways of working can bring instant benefits to both the employer and employee.
| Employers | Employees |
| Decreased overheads / cost savings | Greater focus on work during term time. |
| Increase retention | Greater balance between work and childcare responsibilities |
| Attractive recruitment tool for the right talent | Significant reduction in childcare costs |
| Brand enhancing | Separation of work life and home life |
| Reduced absenteeism | |
| Greater employee well being |
Considerations:
Once the decision to move forward with the Term-Time Only proposal has been made, making sure the working pattern is captured fully in the employees’ contractual terms, provides clarity and protection for both parties. Managing contracts of employment is something we do with every client.
Include the Term-Time Only Working specifics in contractual terms for new employees from day one.
If an existing employee moves to a TTO working pattern, employers need to amend their standard contract to address the following factors:
- Hours: Identify when you need the individual.
- Holidays: Clearly stating when an individual can and not take their annual leave.
- Salary – either 12 equal monthly or 52 equal weekly instalments. Prorate the instalments if the TTO work commences partway through the year.
- OR – monies will be paid on a weekly / monthly basis during TTO, based upon their actual TTO hours worked. You may agree on a separate provision for any OT payments.
What Next?
Moving forward, employers will need to consider the extent to which the pandemic might impact on their ability to refuse flexible working requests going forwards.
It is worth remembering that employers wishing to reject a statutory request, can only do so on one of eight statutory grounds. These grounds are:
- the burden of extra costs inability to reorganise work amongst existing staff
- inability to recruit extra staff
- detrimental impact on quality
- negative impact on performance
- detrimental effect on ability to meet customer demand
- insufficient work for the periods the employee wants to work or
- a planned structural change to your business
That is not to say it won’t be possible to refuse a request, but employers will need to provide clear evidence about why flexibility is no longer possible, notwithstanding the fact it has demonstrably worked over the last 18 months.
Employers unreasonably refusing a request, risk employees bringing a claim under the statutory scheme, and, in certain circumstances, claims for constructive unfair dismissal. More significantly, employees protected under the Equality Act 2010 (for example, women requesting flexible working for childcare purposes) could bring discrimination claims, where there is no limit on the compensation that can be awarded. Therefore, handling flexible working requests appropriately will be crucial going forwards.
Conclusion…
The back drops to our organisations have changed dramatically, with flexibility becoming the new normal during the pandemic. There is no denying the cat out of the bag as far as flexible working is concerned. For this reason, employers should be ready to respond to changing demands.
Flexible working is not an additional burden for employers. If the past year has shown us anything, it is that flexible working can bring benefits for both sides. For some employers, this may be more than just a question of considering flexible working requests. This is an opportunity to think imaginatively. This is an opportunity to think about future ways of working. Consider whether you can implement increased agility into the workforce in a sustainable and beneficial way.
For more information, guidance, and support get in touch using our online form, or by calling us on: 0330 400 5490.
As a Managing Director at Wurkplace since May 2010, Karen has extensive HR, employment law and health and Safety experience from working within the private sector.
She also boasts experience of working in the public sector including local authority, fire service, police, schools, colleges, charities, NHS.