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So what do I need to think about with a term time only employee?

So what do I need to think about with a term time only employee?
Richard Hiron Apr 06,2021
blog post

It can be tempting to think that term-time only workers are only a relevant consideration in the education sector.

Whilst this is true to some extent, other sectors have also embraced this method of working depending on the level of support that their business needs, often as a result of the lifestyles of their workers (for example, where workers have partners enlisted in the armed forces and the navy).

However, recruiting employees who work on a term-time only basis also comes with its own particular nuances, some of which we will explore below. 

What do you mean by “term-time only” working?

This is the earliest consideration for the employer and one of the most important regarding recruiting term-time only workers.

What precisely would be acceptable for the business in terms of meeting its needs, bearing in mind that you also need to ensure a stable and supportive working environment for the term-time only worker and their colleagues?

For example, a worker may work full-time during term time or part-time during term time (perhaps on an hourly basis). This concept can be quite daunting at first as it adds an extra layer to the worker/business relationship. The full-time term-time worker is not a part-time worker in the strict sense, but is entitled to the same protections as a full-time worker, just as the part-time term-time worker is.

As a business owner, you will also want to know precisely what the school term dates are each year to assist with your internal planning, not the least of which might involve establishing a structure to fill in for that worker when they are absent.

Indirect sex discrimination

Another early consideration is to examine precisely whether term-time only working could work for your business.

For example, what would you do if a prospective worker asked to work on a term-time only basis or a qualifying existing employee made a flexible working request to switch to a term-time only working structure?

If you decided to decline that request, you would need to be in a position to justify why it is not possible to accommodate term-time only working as not doing so could risk your receiving a claim of indirect sex discrimination, bearing in mind that such requests are likely to be made by mothers with children in full-time education.

Be mindful that a claim of discrimination can be brought by job applicants, workers and employees.

Salary

Administratively, it is often easier for businesses to pay term-time only workers across the year, despite the fact that the term-time only worker may be away from the business for upwards of 13 weeks per year.

Historically, part of this included adding an element reflecting holiday pay into a term-time only worker’s salary (technically known as “rolled up” holiday pay) because it was not actually paid at the time that the worker was on holiday. However, this is unlawful under the Working Time Regulations 1998, so it is often best to pay holiday pay when the worker actually takes their holiday (although we will return to this below).

As many term-time only workers will not be present during the entirety of school closure periods and these time periods may run up to 13 weeks, the balance of that leave will (strictly speaking) be unpaid, but businesses may simply pay the worker throughout the year. instead If they do this, then they must ensure that they are not placing themselves at risk of falling foul of the National Minimum Wage regulations.

When will the worker actually take their holiday?

This will need to be agreed with the worker.

At the very minimum, you need to ensure that the worker has 5.6 weeks’ annual leave (or the pro-rata equivalent if they are part-time) each year, although some businesses may enhance that leave for their workers and employees depending on their own internal rules. This could also place term-time only workers in a more favourable position than full-time workers in terms of their holiday entitlement: an example of positive (i.e. lawful) discrimination.

For example, you may purely be agreeing to them taking their annual leave in the 6 weeks’ summer holidays or you may also be including half terms and other holidays in that allowance. Alongside this, be wary of how you regard public holidays that do not fall within a strict school closure period.

What if the worker wishes to take their holiday during term time?

This may sound non-sensical on the basis of retaining a term-time only worker, but it does happen. After all, parents can apply to take their children out of school during term time.

If this does happen, would you be able to accommodate that request? If not, what would your reason(s) for declining it be?

If you can accommodate the request, how would you then handle it from an administrative perspective? For example, you might consider deducting salary from the employee (since they will technically have taken more than their holiday entitlement) or you could ask them to make up any lost working hours, perhaps before a certain date.

What if you require the worker to work during a school closure period?

If this is likely to crop up, then you will need some form of agreement or procedure in place with the worker to accommodate this business need, whilst recognising that you are asking them to work during their non-working time.

Whilst you are not necessarily obliged to do so, you might wish to offer them some form of incentive for working during a time when they usually would not be, such as an enhanced rate of pay.

Do bear in mind, however, that if you do require the term-time only worker to work during a school closure period, you will still need to pay them at least their agreed basic rate of pay.

How do I calculate their leave?

Ordinarily, a worker’s annual leave entitlement will “accrue”, i.e. they will accumulate a number of days or hours of annual leave during their working period.

This is not the case with term-time only workers as, subject to your working agreement with them, they will be deemed to take their annual leave entitlement during school closure periods.

Therefore, if they start working for you the day before the school summer holidays, they will then be on holiday as they only work on a term-time basis (subject to the terms of your agreement with them).

However, if the worker is leaving your service part-way through your holiday year, then you will need to perform a calculation to determine how much annual leave they have taken and how much of their entitlement remains, which can be quite complex. It is therefore best to get specialist advice on this.

This article is intended for information purposes only and not as a substitute for legal advice. TP Legal does not accept any responsibility for any decisions that you may make as a result of reading this article. If you require employment law advice, please do not hesitate to contact us on 01483 751878 or at rh@tplegal-ltd.com.