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:
- the burden of additional costs
- an inability to reorganise work among existing staff
- an inability to recruit additional staff
- a detrimental impact on quality
- a detrimental impact on performance
- a detrimental effect on ability to meet customer demand
- insufficient work for the periods the employee proposes to work
- 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.
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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