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Annual leave - Teachers & TTO Support Staff

Hi all

This is a bit long and complicated but please bear with me. I'm trying to understand the impact on current legislation/case law on absence practices in schools and am getting in a pickle. If anyone is willing to sense check this and let me know if I am missing something it would be greatly appreciated.

Background

Teachers currently under the national agreement (burgundy book) are contracted to work for 39 weeks a year but are paid for 52 weeks. There is no reference to annual leave entitlement in any document. Teachers are deemed to be full time employees. Currently only working days that are sick are counted towards triggers.

Support staff are currently under the national agreement for local government workers (green book) which details annual leave entitlement. Those working only during school opening times are known as term-time only (TTO) staff and are paid for 39 weeks + pro rated holiday entitlement, e.g. 45 weeks per annum. Their annual salary is prorated and paid in 12 equal monthly installments across the year. It is stated TTO staff cannot take annual leave during term time, however, annual leave is not recorded any where. Currently only working days that are sick are counted towards triggers.

We have a small group of all year round (AYR) support staff who work throughout the school holidays and are paid for 52 weeks a year. They have annual leave entitlement that can be taken at anytime throughout the year. Working days and annual leave days that become sick days (e.g. if an employee provides a fit note) are counted towards sickness triggers. AYR employees are given back any annual leave that is recorded as sickness.

Questions

1. Are TTO staff considered part time employees? (I believe they are)

2. Should we be recording where annual leave is being taken for all employees in order to be in line with WTR? (I believe yes, which would mean in the absence of any other terms, teachers would be entitled the statutory 5.6 weeks?)

3. If annual leave is allocated to specific dates and then recorded as sickness, should we be giving back the annual leave? (I believe yes)

4. If we do not change allocated annual leave to sickness, should we be paying in full e.g. If an employee is off sick from 1st - 31st October on half pay, but we keep 17th-24th as annual leave, should this week be paid at full pay? (I believe yes)

5. Can days that were initially annual leave but become sick days be counted towards absence triggers? (I believe yes)

6. If we decide to not include annual leave days that become sickness against triggers for teachers but we do for support staff is there any risk? (I'm thinking if TTO are deemed part-time is there challenge that we are treating PT staff less favorably or would the fact that the small number of AYR staff already have this be our defense?)

Currently there is no management of annual leave for teachers and TTO staff and I'm trying to ensure we are compliant and as fair as possible. I am being challenged by teacher unions about allocating annual leave days for teachers and the implications of this e.g. having more days that could count towards sickness triggers (one union that has both teacher and support staff members said they are happy for support staff to have less favorable terms). There is no mention in the burgundy or green books on how sickness should be managed and it is recognised this is a local arrangement through policies, however, the teacher unions keep referring to the burgundy book's terms that only the 39 working weeks can be counted against sick pay entitlements (something we have acknowledged and we are not looking to change, but they cannot see sick pay as a separate matter to managing sickness absence).

It is very likely we will not pursue this matter further, but I would like to highlight where we may be falling short and any associated risk.

Thanks for reading! 

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  • Good luck Kimberly in trying to understand - it's an absolute minefield. I think you need to lose the concept of Teachers having annual leave as such - Section 51 of the STPCD describes working time - 190 days where they are required to teach etc therefore by definition this falls in term time and the 5 days for other duties (PD Days). It would then be your Leave of Absence policy that documents any other time that they take off.

    With most of your questions I think you have the right answers. Any sickness days should be counted towards triggers - there may be supporting context around the why that needs consideration. My feeling is that if someone is sick they are sick and therefore not fit for work. I would then not class it as annual leave. This does work both ways in that if someone had booked a week off but was then too ill to take it and then wanted it later in the year when they were fit and healthy but couldn't because they'd run out of their allocation .....

    I am interested to know how the unions see teachers annual leave as being allocated and where.

    I also think that your Absence Management policy needs to cover all staff regardless of role - I would go back and challenge why the Union in question is willing to give one group of staff less favourable terms.

    I think so long as you have clear policies, and follow them, you should be fine.
  • In reply to Sarah Trueman:

    Hi Sarah

    Thank you for your response.

    I'm looking to allocate specific days for Teachers' and TTO only support staff' annual leave entitlement to show compliance with WTR etc e.g. October half term would count as 1 weeks leave, Christmas as 2 weeks and so on until the entitlement is exhausted. Any remaining school holidays would not count as any form of leave, being unpaid non-contractual days for TTO support staff and paid non-contractual days for Teachers.

    For AYR support staff if they had a fit note covering periods of annual leave we would class it a sick leave and give the annual leave later in the year. I'm looking at making this consistent for all staff and bringing it in for TTO support staff and teachers. I'm only getting push back for teachers as they keep quoting like you say the 195 contracted working days and the teachers sick pay scheme (which I keep stressing we're not changing) but they won't entertain the concept of annual leave and just want us to acknowledge 13 weeks paid time off (although they were very quick to add that teachers do work outside their directed time!). They get frustratingly defensive and conversation always end up being about how difficult the job of a teacher is instead of addressing the issues around ensuring we are compliant and documenting it accordingly.

    I've been in education nearly 5 years now and am shocked at how good teachers' T&Cs are and how badly in comparison support staff's T&Cs are, particularly AYR staff. When I try to introduce consistency I'm usually met with "but they're teachers", "it's the way it's always been" or "that doesn't happen in schools" - crazy really!
  • In reply to Kimberly:

    Just in case it's not already on your radar, remember to keep an eye on the Brazel Harpur Trust case due to be heard in the Supreme Court on 9th November
  • In reply to Kimberly:

    I know you are saying about WTR but would teachers agree that they have all of each holiday break actually 'off' work? Who is pushing you to show compliance for Teaching staff?

    You are right about the T & C - I still struggle with 3 years safeguarded pay!
  • In reply to Sophie:

    Thanks Sophie - this is what has prompted us to review our annual leave policy as the local HR consultants for schools recommended we look to allocate holiday for TTO staff.
  • In reply to Sarah Trueman:

    Due to the Brazel case the local HR consultants advised that schools should look to allocate annual leave for support staff for compliance and I thought we should do it for teachers too.

    We do not ask staff to work during the 13 weeks school holidays, however, some might pop in to sort out things like displays or pick up emails etc. I can say with certainty that teachers do not attend the workplace for at least 5.6 weeks.

    What is making this particularly complicated for teachers is that they are paid for the full 13 weeks, where as support staff are only paid for pro rated holiday which makes it easier to manage.
  • In reply to Kimberly:

    Hi Kimberly,
    to my understanding the burgundy and green books mean employment terms and conditions for teachers and support staff cannot be compared.

    As Sophie mentions above the Harper vs. Brazel case is of interest vis-a-vis support staff entitlement. Teachers directed time of 1265 hours is different. Many teachers will work 'out of hours' / pop in when required but this would not affect their fundamental T&Cs which is essentially 1265 hours delivered over term time of 39 weeks. So holiday doesn't apply as such.

    Our staff absence policy covers a variety of scenarios where teachers and support staff might take / request time off and how those situations are likely to be managed.

    it is what it is, slightly inequitable but due to the separate T&Cs.
  • We have included the paragraph below in our teacher contracts (in an independent school which might give us more flexibility here), which might be useful for you to think about for your staff in the future. Effectively it allows us to allocate statutory holiday in the first weeks of the year that aren't otherwise being worked or where a statutory right is being exercised - recognising that if a teacher is taking a trip during the holidays, or working for some other reason, or is ill, we just move to the next available time. In practice, this isn't often an issue - but allows us to make consistent calculations when it is.

    Nina

    The holiday year for teaching staff runs from 1 September to 31 August. The Teacher is entitled to the statutory holiday entitlement from time to time in place. The Teacher is required to take their statutory holiday entitlement in the first arising periods of school closure (aggregated until the statutory entitlement is exhausted) in each holiday year, provided that during those periods the Teacher is not unavailable for work due to sickness or the exercise of a statutory right. The Teacher may be required to work on Public and Bank holidays occurring during school terms. Public and Bank Holidays on which the Teacher is not required to work will be counted as periods of school closure for the purpose of this clause. Days during a school closure period on which the Teacher is required to work (such as INSET days or school trips) will not be counted as a period of school closure. Subject to these requirements, the Teacher will not normally be required to work during normal School holidays.