Work that works for everyone
DWF Employment Lawyer Jennifer Wright on the biggest worries employers have when establishing flexible work, and how they can overcome them.
The right to work flexibily is one of the most important entitlements for employees in the modern workplace. Specifically, it's the right to balance work commitments against those of an employee's personal life. Although usually thought of as an important right for parents and carers, since the expansion of the entitlement to request flexible working in 2014, I have seen a steady rise in the number of people using flexible working for many reasons including to engage in additional study or to wind down to retirement.
As an employment lawyer, I have advised in many situations where employers are nervous about wrestling with flexible working. I get it. You've got a happy ship, with everyone working standard hours, and doing anything 'flexible' might disrupt that. Everyone will want to go part time. In this blog I'm going to give my thoughts on how best to overcome suspicion and scepticism on flexible working and to embrace the positive benefit that it can have for employers and employees.
I don't think this is going to work.
My first question to a client who raises this is - why? What makes you think this isn't going to work? Walk me through your concerns. Often that can be enough in itself to unravel a refusal that flows from a closed mind. I was at an event recently where a speaker commented that she didn't think there weren't many 'office jobs' that couldn't be done in the work pattern 9 working days in 10. I would tend to agree, particularly for those jobs that don't require a strict customer facing presence or manufacturing continuity. I appreciate there will be some circumstances when a particular request for flexible working will require a bit more thought. It is however worth remembering that the employee who submits the request for flexible working is obligated to accompany it with their thoughts on how the change would impact the employer and how such effect could be dealt with. Take congnisance of what they say. Those on the ground are well placed to give a good view of any issues that their proposed working pattern is likely to create and how best to resolve those issues.
Trial periods are an often forgotten tool when it comes to flexible working. Recognising that there will be situations where there are doubts about the change in the employee's work pattern, where possible I always recommend trying to give it a go for a period of time if it is remotely workable. Employers might be pleasantly surprised that the requested work pattern does fit with the needs of the business and the employee will be grateful to be working the pattern of their choice. Everyone wins. If it doesn't work, there will be evidence there for employers to show that they gave it a good go and a reasonable employee will hopefully agree.
Do I have to say yes to everyone?
I often hear employers express concern that if they say yes to one person, they are going to have to say yes to everyone else who makes a request. However, nothing in the law governing flexible working requires employers to say yes to every employee who asks. And it is worth remembering that not every employee in an organisation is going to want to work flexibly in any event – particularly if changes in work patterns necessitate a reduction in pay. The floodgates fear is a common one and one that employers should stop and think about before refusing a request outright. There are grounds on which a request for flexible working can be refused if what is being sought is genuinely unworkable. This means that employers don't have to agree to any request made of them.
What if several people ask to work flexibly at the same time?
Employers aren't obligated to make judgement calls about which request is more merited. It's ok to deal with requests in the order they arrive. Alternatively, communication is key. Why not speak to all of the employees to discuss their requests and what adjustments can potentially be made to accommodate all of the changes they are looking for? Often employers become afraid of sitting down to have a sensible chat with their staff. Just because there are legal parameters to work within, it doesn't mean that employers have to be afraid to take a common sense approach to dealing with flexible working requests.
In this section.
- Harvey Tilley, Independent Living Fund Scotland
- Bonnie Clarke, Badenoch & Clark
- Amanda Jones, Maclay Murray and Spens LLP
- Tracey Eker, Flexiworkforce.com
- Olivia McLeod, Scottish Government
- Aneela McKenna, Scottish Parliament
- Fiona McQueen, Scottish Government
- Celia Tennant, Inspiring Scotland
- Tania Hemming, Morton Fraser
- Lorraine Gray, Pursuit Marketing
- Andrew Watson, Quorum Network Resources
- Alan Thornburrow, Business In the Community