Present and correct

It’s widely accepted that better attendance results in better attainment but are employers doing enough to support this?

Christine Toner reports

It seems an obvious statement to make. Good attendance leads to greater academic success. Indeed, a child can’t expect to learn something if they’re not there. It’s the reason why attendance is so important for schools and the philosophy behind the education sector’s mantra “Every school day counts.”

“It is crucially important that our students are in school every day,” says Shaun McInerney, principal at The Studio. “Teachers plan the curriculum on that basis and students are losing out if they’re not in school. Also, at The Studio, we are preparing our students for careers in the digital technology and tech sectors. We encourage our students to develop high standards of integrity and organisation and taking time off unnecessarily undermines this.”

Recently, the University of Glasgow conducted a 12-month study into pupil absence at school. The report – Absence from School: A study of its Causes and Effects – found that poor attendance has adverse effects on Key Stage 2 and 3 tests and is associated with disruptive behaviour.

However, the study also found that 40% of parents believed it was OK for children to miss school for family holidays.

This is an issue that has long been the subject of debate within the education sector. The school calendar contains plenty of holidays and, as such, most people would argue there is little reason to disrupt term time with a family break. There are, however, two issues which counter this argument. The first, of course, is the issue of cost. It’s widely acknowledged that holiday prices increase significantly during school holidays and the matter is regularly addressed in the media and, indeed, in Parliament (though as yet there has been little in the way of action taken).

The second, however, is less widely discussed – and that is the role employers play.

The benefits of family holidays have been studied and proven many times with greater brain development and an improvement in engagement levels up there among the most significant. But are employers making it easy enough for staff to take holidays during school holidays? And should they be made to?

The law on the issue is somewhat vague. While the number of holiday days employees should be allowed is clearly documented, there’s nothing that dictates when holidays can be taken, or that school holiday dates must be taken into consideration by an employer.

“Employees are entitled to a statutory minimum amount of holiday, totalling 5.6 weeks (28 days),” says Chris Hayes, a lawyer on MSB Solicitor’s commercial team. “This figure is inclusive of bank holidays and is known as ‘statutory holiday’. How an employee takes their holiday is governed by the Working Time Regulations 1998 (“WTR”) and, if they have one, their contract of employment.

“Holidays are to be taken during the employer’s holiday year and the general rule is they cannot be carried over into a new leave year; however, there are some exceptions to this which are for a separate discussion.”

Importantly, an employer is legally entitled to refuse a leave request as well as being legally entitled to order an employee to take leave, which is often used if an employee has built up a lot of holiday.

“In short, an employer has significant powers to refuse and enforce annual leave, dependent upon the needs of the particular business,” says Chris.

Of course, managing employee holiday requests can be tricky, particularly for small businesses and this can impact a firm’s ability to grant all school holiday requests.

“If the employer’s business is particularly busy during school holidays, they may refuse holiday requests during that period,” says Chris. “Some employers may even include within a contract of employment or holiday policy that holidays are not permitted to be taken during a certain time of the year.”

When there are several parents within a firm, it’s clear there are going to be problems.

“Inevitably there will be a large proportion of employees who scramble to book holidays as soon as the new holiday list is published, seeking to book dates during the school summer period and this always causes problems,” says employer Steven Hunt, managing director of engineering specialists Steven A Hunt & Associates. “As a company, we try and encourage staff to stagger their time over the six-week summer holidays and we try to mix it so that we don’t have too many similar grades of staff absent at the same time.

“However, we are keen to make sure that everyone is happy and we work hard to accommodate the wishes of everyone.”

Shaun says the vast majority of parents do a great job balancing home and professional life adding “Where employers are flexible they can support parents to model this well for our young people who will also need to learn how, one day, to balance their care for their children with their work responsibilities.”

For those parents whose employers are unable or unwilling to accommodate their holiday requests, the dilemma they face is that most schools operate a zero tolerance approach to taking children out of school during term time.

The government says parents have to get permission from the headteacher if they want to take your child out of school during term time but adds they can only do this “if there are exceptional circumstances.” And holidays don’t count as “exceptional circumstances.” Since a change in the rules from the Department for Education back in 2013, such circumstances are restricted to things likes family member’s funerals.

According to a recent investigation by the BBC, parents across England and Wales have been fined £24m for failing to send their children to school during the past three years

As such, questions are being raised as to whether changes in employment or contractual law are required to avoid such issues, however legal experts are dubious as to whether this could work.

“The only way in which an employee would be guaranteed the right to take annual leave during the school holidays, would be for it to be incorporated into their contract of employment,” explains Chris. “This would then create a contractual right which if the employer breached, by not allowing holiday, could result in the employee having potential recourse.

“I would foresee great difficulty in persuading employers to agree to this as ultimately they are increasing their own exposure to risk, by introducing a contractual right which they must abided by. My experience is that most employers work hard to minimise their exposure to risk, for obvious reasons.”

Kate Catherall, senior solicitor at e3 employment law LLP agrees.

“We already have employment laws in place to cover childcare emergencies, namely ‘time off for dependents’, although this is intended to cover arranging the provision of longer term childcare,” she explains. “In practice this means a day or two’s (unpaid) leave to arrange cover, not the provision of childcare over the summer holidays. Another form of leave already in place is parental leave, again unpaid, up to four weeks’ leave per year subject to certain qualifying requirements. Again, this may not assist in this case because if the employer has a ‘significant reason’ they can postpone the leave requested.

“Ultimately cases like this may come down to the mutual duty of trust and confidence between employers and employees. Employees should give their employers reasonable notice of holiday requests (following any policy in their contract or handbook), whilst employers shouldn’t unreasonably refuse leave requests, recognising the needs of the business and ensuring they don’t discriminate in terms of whose requests they allow.”

Short of a legal overhaul, a change in perception and understanding of education and the impact of absenteeism could make a difference. If we all take an interest – and a responsibility – for the education of the next generation, as opposed to just parents, we could avoid such problems, as Shaun McInerney points out.

“It is crucial we harness the support of the local media to promote positive messages about schools so that people understand what young people are missing out on if they are absent unnecessarily,” he says.

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