I am a primary school teacher who went through the appeal process to reduce hours from five days to two – part time/ job share. The governors upheld my appeal on the provision they found an appropriate job share. They have now informed me just before I am due back that after advertising on two separate occasions they were unsuccessful. However, they did not even hold interviews. My feeling is that this was their plan to avoid me going part time. Can I appeal their decision?
Typically, the appeal is the end of the internal process and there is no further right of appeal unless the school’s policy expressly allows for one. From what you say it sounds like the governors may have merely paid lip service to your request to work two days without making any real attempts to accommodate the request. Having said that, it is difficult to advise you without knowing the content of the appeal outcome letter (if one was issued), whether genuine attempts were made to recruit someone, whether they received any promising applications from which they could take candidates through to interview and the timescales involved.
Generally, the obligations on employers with regard to flexible working requests received after 30 June 2014 are to:
– deal with the request in a reasonable manner;
– give you a decision within the decision period (generally three months from the date when the request is made); and
– only refuse a request on one of the eight prescribed grounds.
Failure on any of the above points would be grounds for an employment tribunal claim.
If we assume that one of the prescribed grounds has been made out, it comes down to the other two points. Unless you had agreed to extend the timeframe for completion of the process, by not providing you with a final decision until three weeks before your return, the school may well have gone beyond the three-month decision period. In terms of reasonableness, I do not consider it particularly reasonable of the school to advise you at this late stage of its final decision, as you will no doubt already have childcare in place. There is also a question mark over whether the school has genuinely applied its mind to the proposal and given it proper consideration, as it should do.
If you were to bring a claim under the flexible working legislation and were successful, a tribunal could order reconsideration of the request and/or make an award of compensation (a maximum of eight weeks’ pay). Claims must be brought within three months of the flexible working decision being communicated to you and you would be required to go through the ACAS Early Conciliation process, whereby ACAS attempts to assist in reaching a settlement, before issuing your claim.
It is quite common for tribunal claims under the flexible working legislation to include a claim of indirect sex discrimination. This is where an employer applies a provision, criterion or practice (such as refusing part time working) to all staff, which has a detrimental effect on a particular group (i.e. women). This may not be applicable in the circumstances and the school may be able to defend its position by having sought to recruit another part-time employee to accommodate your request. I suggest you take further advice if you wish to pursue such a claim.
If you don’t have any further right of appeal under the policy, then you could consider bringing a grievance under the school’s internal grievance procedure before taking any action in an employment tribunal.