Advice from the hotline...

The ASCL hotline is a completely confidential service available to answer members' questions on issues that arise in school/college. The questions and answers below are based on real calls to the hotline. To protect confidentiality, all scenarios have been anonymised. If you need advice on a personal or professional issue, call 0116 299 1122 and ask for the hotline officer.

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Pause for pregnant staff?

Q
We have had an outbreak of pregnancies in the last two years and increasing numbers of staff are returning from maternity leave asking to go part-time, work mornings only or come in late. We have so far agreed but if we continue to accommodate these requests in future we shall be unable to deliver the timetable. What rights do staff have with regard to flexible working - can we say no?

A
The Employment Act 2002 includes the right for employees to apply for flexible working arrangements. Therefore as an employer you must seriously consider these requests but you may turn them down if you have good reasons. Statutory grounds for refusing flexible working arrangements include:

• detrimental effect on ability to meet customer demands

• inability to re-organise work among existing staff

• detrimental impact on quality

• detrimental impact on performance

• insufficiency of work during the periods the employee proposes to work

Female employees may of course argue that the refusal to permit them to work flexibly indirectly discriminates against them as women, with primary caring responsibilities for children. Job share requests should be considered carefully since employment tribunals tend to view these positively in the education sector.

It is absolutely crucial that a refusal is based solidly on factual grounds and not on what the school thinks might happen: for instance, that a suitable person to job share will not be available. If a school is already managing it will be harder to make this case.

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Under observation

Q
One of the teacher union representatives is claiming that we are contravening the workforce agreement by having the senior team conduct too many classroom observations. How many observations can we have outside the three hours for performance management?

A
All classroom observations (which should serve more than one purpose) should be within the statutory three-hour limit. However, there are two exceptions. One is where serious concerns have been noted about teaching quality, in which case additional observations can be triggered. These are not time-bound but they must be reasonable. The other exception is drop-ins, which also do not count toward the three hours. Again, no time limit has been specified, but the nature of drop-ins mean that it must be just that - up to 10-15 minutes would be reasonable.

Peer observation, which is arranged voluntarily between teachers for their own continuing professional development - and which, as part of an effective development programme, ought to be encouraged - also does not count towards the three hours.

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Staking a 'rare' claim?

Q
For as long as I can remember - certainly since I came to the school five years ago - staff have been allowed to take paid time off to go to their own children's school performances or parents' evenings etc provided they arrange with colleagues to cover any missed lessons. Will this arrangement still be allowed with 'rarely cover'? Are staff entitled to paid time off for this?

A
Contractually, staff are required to work in accordance with the terms of their contract and there is no statutory exception which permits them take paid time off for these purposes. The school may, however, have set something of a precedent by way of 'custom and practice' but the employer would be justified in putting an end to this practice if it was causing difficulties within the school. HR advice should be obtained before making sudden changes.

Rarely cover will come into effect in September 2009 and, although final guidance has not yet been issued, it is clear that the arrangements you outline will no longer be acceptable as part of a school policy.

It will not be illegal for teachers to volunteer to cover for colleagues - but voluntary arrangements should not be incorporated into schools' policies and schools should not expect or require a teacher to cover in anything other than 'emergency-type' situations.

ASCL has always recognised that rarely cover would be the most difficult element of the workforce agreement to implement in secondary schools. To read case studies from schools that are moving toward rarely cover, go to www.leadermagazine.co.uk/article.php?id=1208.