Flexibility rules

Changes to the rules on flexible working has meant that flexible working has been extended to all employees with 26 weeks' service (so no longer limited to parents of children under seventeen, or if disabled under eighteen, or to carers). Employers will be allowed to use their current HR procedures and must consider all requests in a reasonable manner and in a reasonable timescale (three months). That’s the legal speak over (and I pinched that from an online search)

At this point you may be asking isn't that pretty much what happens now? Well yes, but the right to request is just being widened to a broader population, so more people can ask (well nearly everyone can ask). Some people I have mentioned this to seem unfazed and employers retain the right to say no to any request. If you have the right approach in place to deal with requests, and deal with them fairly, then not a lot has dramatically changed. Other people worry about an onset of requests, an inability to accommodate them and having to say no.

We went to talk to a firm whose reputation in this field is first class, Lewis Silkin – and in particular their Joint Head of Employment and Partner, Michael Burd and their Director of People & Knowledge, Penny Newman. Many people, including one of the writers of this blog, will have benefited from Michael’s wise words over the years.

Michael stressed that employers shouldn't fight flexible working requests but instead should embrace them and see them as a way to engage with individual staff members and come up with workable solutions. In his experience when disputes have escalated in this field it is because employers do not have a process, do not follow a process and/or do not communicate properly with the person making the request. Often it is all so avoidable.

The law expects employers to act reasonably. The words decently and fairly could also be used. The law does not require you to grant all requests, simply to listen, review and take a business decision based on the facts. The answer could well be no but there are ways of saying no and on some occasions the person themself agrees that it just isn't workable. A process should include having a discussion, talking it through, seeing if it could work. In this way employees feel listened to and the lines of communication have been opened.

Requests for flexible working are increasing and not just from women. The world is seeing an increased incidence of shared-care parenting as a large segment of today’s legal workforce place a high priority on family time. We are seeing that Generation X and Generation Y are regularly finding themselves juggling health issues and the needs of aging parents with their work demands. Working mothers continue to seek to balance the demands of parenting with the demands of a legal career. Savvy law firms recognise that the growing issue of flexible working is one that they need to get right in order to stay ahead of the competition. They need to attract and retain top legal talent and be sensitive to the huge demands placed on many of their employees.

All of these factors have prompted law firms to adopt work life balance initiatives. Pinsent Masons has launched a scheme called ‘VARIO’ which they describe as a 'next generation' flexible resourcing business. They know that there are many talented people who want to combine a successful legal career with other lifestyle options and believe that this scheme will help them to achieve this.

Allen & Overy has launched Peerpoint for the same reason. Described by them as ‘global, flexible resourcing’, they quote: ‘Ever thought there must be a different way to do this job? So have we.’

Penny and Michael mentioned three things Lewis Silkin does which help them respond properly to requests.

  1. They ask people requesting flexible working to complete a form - not too onerous, but asking them to think about how working flexibly could work in practice? What are the effects on the business? What will be the knock-on effects on colleagues? Sometimes the person requesting flexible working suggests ideas and solutions the firm hasn't thought of. They often show ‘flexibility in their flexible working’ and a desire to make it work and this is important. Filling out the form and subsequent face-to-face conversations are often fruitful and positive and a solution is found or a decision is made which is fair and workable.
  2. The firm has a flexible working committee which assesses requests so there is a forum to ensure consistency of request responses across departments and functions.
  3. They have people experienced in handling requests, who are aware of what the firm has done previously, what opportunities exist etc.

Their experience is that if you get it right and can offer flexibility to people, even on an interim basis, eg for carers, it can have a huge, positive effect on morale and retention. Penny tries to ensure people are treated like she would like to be treated herself.

So is the reason the person wants flexible working relevant? If you are doing something worthy should your request be treated more favourably than requests which are, by comparison, less worthy (all very subjective)? Technically speaking the reason is irrelevant. The decision should be based on business need and the ability of the business to accommodate the request. In reality however it is very hard to divorce the request reason from the heart strings and the decision.

You often hear of people saying any agreement made will be reviewed. Do these reviews really happen? Once the change to a working pattern starts, isn’t it hard to change it back? The important thing here is to agree a review and stick to the review date. There isn't a specific three or six month deadline but problems occur if reviews are agreed, don't happen and then down the line concerns are raised.

Is it being unreasonable to even request flexible working? For example if others in the team are working flexibly and the team is struggling to cope, is it unfair for the last remaining full-time worker to request part-time? No, it isn't unreasonable for them to request this. At the same time it isn't unreasonable for the employer to say no, as long as it is on business grounds and isn't personal. It becomes unreasonable if the employer doesn't give the request due consideration or the employee doesn't accept the decision if proper consideration has taken place and a process has been put in place. The employer (and actually the person requesting flexible working) needs to factor in the effect on full-time colleagues left behind. It is to no-one's benefit to create tension in a team. This is where communication becomes so important. One client we know gets his team together and asks them to come to a solution between them.

In this technological age where people can log on from home and view their desktop it has become easier for employees and employers to make flexible working work. In fact, with four-day week or nine-day fortnight arrangements on the march, the most common mode of flexible working seems by far to be remote working – but other new ideas such as lawyer job-sharing are also being tried out. Where there is a will there is often a way but no-one says it is easy. Both Penny and Michael agreed that the more senior a role the harder it is to manage flexibility. For the most part, flexible working remains far more common among law firms' more junior support staff than partner-track lawyers. Has anyone cracked the part-time Partner nut yet? If firms that have recently announced optimistic target percentages for female Partners are going to achieve them, then the nut will need to be cracked. It isn't easy but there is a will and need to focus on this at many firms.

The biggest lesson we learned is that a flexible working request should not be seen as a threat but seen as an opportunity to discuss an employee’s work and life and see if you can help. Often the decisions made, whatever they are, can have a positive effect on employee engagement and team morale. So don't fight it, embrace it.

Please remember we are recruiters, this is a blog and our interpretation of a conversation. This is not employment law advice.

If you want employment law advice then www.lewissilkin.com can help (other law firms are available)

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