Flexible working: Headache or opportunity?

In recent months, a number of UK law firms have announced the introduction of flexible working practices to promote career progression for female staff, as well as to meet the needs of a new generation of lawyers who expect  different ways of working.  Although driven in many instances by the new laws in the UK, as well as European-led proposals to impose 40% quotas for female  directors,  research indicates that flexible working  can bring broader benefits for business as a whole,  from increased productivity  and cost savings to higher  levels of staff retention and improved business continuity.

The legal position: what’s changed?

Until recently, the right to request flexible working has been limited to carers of children under  17 (or 18 if the child is disabled)  and those  who care for adult  dependants. On 30 June 2014, the Flexible Working Regulations 2014  and Part 9 of the Children and Families Act 2014 came  into force allowing any employee with more than  26 weeks’ service to request flexible working  for any reason.

Dealing with the requests: the law

Under the new laws, the way in which employers  deal with flexible working  requests has also changed. Employers now have a period  of three months from receipt  of the request in which to consider  it, meet  with the employee and relay their decision in writing to the employee (including any appeal).

The eight business  reasons for which the employer may reject the request remain unchanged and are:

1. the burden of additional costs
2. an inability to reorganise work among existing staff
3. an inability to recruit additional staff
4. a detrimental impact  on quality
5. a detrimental impact  on performance
6. a detrimental effect  on ability to meet  customer demand
7. insufficient work for the periods  the employee proposes to work
8. a planned structural change to the business.

Provided the requisite procedure is followed, an employee cannot bring a claim under  the flexible working  legislation even if the request is rejected (although he or she may have a claim under  relevant  discrimination  legislation).

Dealing with requests: prioritisation

For employers  accustomed to considering requests from working  parents and carers, perhaps one of the trickiest challenges of the new laws will be how to deal with competing claims. Imagine  you receive one  flexible working  request from

a working  mother and  another from a male team  member who  wants  to work flexibly in order  to write a novel or to coach  a rugby team. Realistically, against the  backdrop of a potential sex discrimination  claim, employers  can and will wish to make  legitimate value judgments when  faced  with such competing requests. Employers also need  to consider giving priority to some  classes of employees; for example,  an employer  needs  to consider  its obligations towards disabled employees and  determine if their request is actually a requisite ‘reasonable adjustment’ under  disability discrimination  legislation.

This was not the Government’s original intention behind  the new flexible working  laws – it expressly wanted to avoid a tiered  right. Deputy PM Nick Clegg has previously explained that  any prioritisation would  be counter intuitive as it would simply reinforce  the view that  flexible working  is primarily for parents and carers. However, discrimination laws aside, will employers lose a superb  employee if and when  their application to work flexibly is rejected? The Acas guidance for employers that supports the new legislation suggests that  employees could be asked  to draw  lots to agree  a flexible working  pattern or the employer could ask for volunteers who might  be willing to change their current working  pattern. Neither of these  options  are satisfactory  solutions  for effective employee relations.

The business benefits

Although potentially challenging for employers, there  is a clear desire and expectation from employees for greater flexibility

in the way they work. According to a survey by Eversheds in January 2014, 21st Century Law Firm: Inheriting a New World, 38% of lawyers aged  23 to 40 said flexible working  was ‘crucial’ to their future, a fact that  has been  supported by wider studies  for a number of years.

Furthermore, flexible working  can bring many positive business  benefits and those  organisations that  have embraced it as a business  strategy, often  calling it ‘smart’ or ‘agile’ working,  report  significant gains, including:

• higher levels of productivity, with employees working  harder and taking  more responsibility for their actions
• reduced stress and consequently fewer  days lost to absence
• substantial cost savings through reduced office space
• higher  levels of employee satisfaction,  which in turn has led to more positive client feedback
• greater staff loyalty and improved retention rates,  with employees feeling more trusted and valued by the business
• greater operational agility, enabling business continuity during unforeseen circumstances.

Implementing a flexible working strategy

The change in law is forcing organisations to focus on their flexible working  policies and strategies. There are a number of possible approaches to consider,  from minimal change – in which employers  simply update their policies and respond to requests on a case by case basis – to a strategic re-evaluation – where  a business  reviews its operating strategy with a view to consulting with employees and possibly implementing changes in the workplace.

For those organisations that see flexible working  as a business  opportunity and want  to review their operating strategy, there  are a number of factors  to consider,  including:

• the employment law implications
• the business’s needs  and how flexible working  fits the organisation
• the systems and processes needed to support business operations and staff
• the communication needs  of all the stakeholders, from management and staff to customers and other  external stakeholders.

Involving employees at each  stage  of the review process  helps ensure  that  the changes are appropriate for the organisation, and also builds ownership and a commitment to making  the changes work.

Once operational, particular  attention should  also be given to day-to-day people  management issues; for example,  how to manage a team  that may no longer  all be in the same place at the same  time, or establishing protocols for keeping in touch  with a remote workforce. Management and staff may need  additional training  to operate in the new working environment.

Conclusion

Flexible working can be seen as an administrative headache or an opportunity to embrace new ways of working  which are good  for employees and the business.  How far and how quickly businesses will adapt remains  unclear,  but one thing is certain: as companies compete to attract and keep  the very best talent, those  that  offer a balanced and flexible work environment will have a clear advantage.

This article is a summary of the authors’ seminar at ELA’s annual conference in May 2014. Abbiss Cadres is a multi- disciplinary practice, offering integrated HR expertise across law and tax, people  consulting and communications.

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