Flexible working – fit for firms?

Much has been said about the proposed changes to the flexible working regime announced by the Government in its Consultation Paper on 23 September 2021.

What does it propose?

There are five main proposals, the key ones being: to allow employees to submit flexible working requests from ‘day one’ of employment (as opposed to after attaining 26 weeks’ service); reducing the timeframe employers have to respond to such requests; and removing the limit on the number of requests that an employee can make in a 12 months period (currently one).

A right in reality?

Some in the legal profession have welcomed the proposals as a step in the right direction in terms of aligning workplace legislation with the reality of modern working practices, particularly after the pandemic. Others view the proposals as doing no more than tinkering with the current system which fall short of bringing about real change, particularly since the power to accept or reject any request for flexible working will remain with the employer (there is no right to work flexibly within the proposals, just an extended right to request it). There are also those who probably feel that the proposals represent a further shift in the balance of power between employer and employee in favour of employees at the cost of running an efficient business in line with the vision and philosophy of its owners.

Back to the office?

There is no doubt that flexibility over time and place of work is the new reality for many people post-pandemic. Employees enjoyed the flexibility they had during that time and want it to continue. The reaction among employers is more mixed. Some are prepared to embrace ‘pandemic-practices’ – or at least a ‘hybrid’ model – as the new norm, while others feel that they coped with what was as a sub-optimal situation during lockdown on the understanding that it was always going to be temporary. Now they want to go back to what was their normal and, one could argue, they are entitled to do that if the temporary arrangements over lockdown do not accord with the office environment they wish to have at their firm and/or are not suitable for their particular office.

Who benefits?

In the legal sector, most of the attention has been focused on fee earners and whether they have been able to work effectively during the pandemic. The issue regarding the supervision of trainees and junior lawyers has been an area of particular concern and there is no doubt that those individuals have been impacted by not having exposure to the informal training/learning that takes place in the office through observing more senior lawyers. Facilitating learning, supervision and maintaining team spirit are therefore key drivers behind the push towards a return to the office, or at least a hybrid (as opposed to fully remote) model of flexibility in terms of place of work (although that is only one aspect of flexible working).

What if they say no?

Whatever the nature of the flexible working request or whoever it comes from, thought will need to be given as to the grounds on which it may reasonably be rejected, if that is what the employer is minded to do (although the Government is consulting on whether the eight existing grounds for refusal should remain, there is no suggestion at present that they will change). Careful thought must also be applied to avoiding discrimination complaints.

What happens next?

As an employment lawyer acting for both employers and employees, I anticipate an increase in enquiries from both sides of the fence. One can see that the administrative burden of dealing with requests will increase as employers grapple with a greater volume of flexible working requests and try to maintain a consistency in approach between them while also taking into account individual circumstances.

I also expect an increase in enquiries from employees who have had their flexible working request refused and who wish to seek redress. One can certainly see the potential for this to translate to increased employment litigation within an already stretched system. 

However, it doesn’t have to be that way. The reality is that there is no one size fits all. Whether any particular flexible working request is suitable will always depend on the role of the individual in question and the employer’s particular business and office set-up. What is required is an open mind and a willingness, on both sides, to see things from the other’s perspective.

Moira Campbell is a Senior Associate in the Employment Team at Kingsley Napley LLP: kingsleynapley.co.uk

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