Flexible working in law; a tale of two experiences

Feature

Christina Simpson, Senior Solicitor, Associate at Capsticks LLP

Flexible working wasn’t really something that occurred to me during the early days of my career but fast forward ten years or so and as I started to think about my future both at work and home, the issue came into sharper focus. At that point, I actually decided to make a sideways career move out of private practice; one of the main reasons being because I wasn’t convinced that I really could “do it all” - or at least do it all justice – whilst working in what felt, at the time, like a very traditional and inflexible sector.

After stepping into a hybrid in house/HR role and then having my daughter, I needed to work more flexibly and wondered how to approach the issue with my manager. And, like many before me I suspect, I was really worried about how he would react. Would he think I wasn’t committed to the organisation? That I just wanted a day to lie around watching television (I wish!)? But actually, I needn’t have worried; after an open conversation with him, ultimately, we came to an agreement about my working hours that suited both me and my team.

And when the time came that I missed working in private practice and decided I wanted to move back into it, again, I was nervous. I’d seen the benefit of flexible working and I knew that it worked, but I wasn’t sure I’d find a firm that was genuinely committed to it.

Again, I needn’t have worried. I can honestly say that the question of me working reduced, non-standard hours was never an issue for Capsticks.

Having spoken to colleagues and friends including Nicola though, I think perhaps I am one of the lucky minority of lawyers who haven’t encountered resistance on the way to flexible working.

Nicola Butterworth, Associate at Capsticks LLP

Things have come a long way from when I first started practicing law. Putting it in perspective, at that time, everyone time-recorded in manuscript, dictated correspondence and used bulky paper files. Real flexibility across the legal sector occurred when it became possible to access a firm’s intranet remotely and more so, when we were issued with blackberries and, eventually, laptops. Yet there was still a culture and an expectation of presenteeism in the office.

I had my first child shortly after qualifying. Following 18 weeks maternity leave I returned to work full-time. After a few years, a second child followed. By then I was mainly providing employment support on corporate transactions. Clocking off at 5.00pm wasn’t an option when there was a deal to be done. So, if a baby-sitter wasn’t available, my young children joined me in the office. Hardly representative of flexible-working.

By the time my third child arrived I decided to request to work part-time. There was no opportunity for an informal discussion about my proposal. My email to one of the partners was met with an escalation to HR and provision of the firm’s flexibleworking policy and a pro-forma request to complete. As an employment lawyer I had advised numerous times on flexibleworking queries. I knew the business grounds on which the firm could reject my request. I went through these and considered how they might apply. I drafted solutions upfront. Setting out the benefits for the firm? More tricky. There was a dearth of studies on the business benefits of flexible working at that time. I submitted my request and attended a formal meeting. My request was rejected. Client service would be affected. Despite working in a large team no-one could cover my work. We reached a compromise, I could leave early once a week.

My eldest is now an adult. My other children attend boardingschool. Finally, I can work the hours that were requested of me so early on in my career and I can be physically present in the office. Yet, ironically, having joined Capsticks last year, I now work for a firm which truly embraces agile working. The benefits for the firm in doing so came to the fore in March, when our physical offices were closed speedily. Our temporary transition to home-working in response to the pandemic was seamless. Everyone already worked part-time in the office and at home, and all of our files are virtual. For staff who bore the brunt of home-schooling alongside home-working, or became socially isolated during lockdown, the firm adapted quickly, finding solutions to accommodate their needs.

It’s clear from our experiences that a lot really depends on the culture of your firm but, if you are currently wrestling with the issue, not sure if or how you’ll be able to convince your employer to agree, hopefully some of the things we’ve learnt along the way will help:

If you want to work more flexibly, having an open, informal conversation with your line manager is a vital first step in the process.

Other than the fact that having the conversation might result in you being able to reach agreement without the need for a formal request at all, there are three key reasons why it is important:

1. It improves relationships; we all know a conversation is often a more effective way of building trust and understanding, particularly when you are asking for something;

2. It enables you to explain your request and the reason for it. It also helps you to get a sense of how your line manager feels about the request and to understand any concerns they might have, giving you an opportunity to address them head on and up front, and offer solutions to alleviate those concerns; and

3. From a legal perspective you can only make one flexible working request in any 12 month period. Therefore, it’s far better to “use up” your annual allowance to make a formal request you know is going to be granted, than to have your request rejected and then have a long wait before you are legally entitled to ask again. The best way of establishing whether your request is likely to be granted is to have a conversation with your line manager.

During Covid times, many of us have been successfully working from home for some of the week, quite possibly carrying out our work at different times of the day. Hopefully, this has helped to persuade even the most sceptical of employers that an enlightened approach to working arrangements, hours and location, is the way forward.

However, if your employer still needs a gentle nudge to see the benefits of flexible working, it might help to highlight how it is positive for the organisation as a whole. Helpfully, studies do now show that flexible working improves not just employee mental health and wellbeing, but also their productivity, their engagement and their commitment to their employer. Adopting a positive approach to flexible working means a firm is also more likely to attract and retain talented employees. Is your employer aware of this? If not, how can you get this across? Can HR help?

In the interests of full disclosure, it wouldn’t be right to talk about all the benefits of flexible working without mentioning some of the challenges it also brings (although these might not be things to dwell on when “selling” your proposal!).

For example, if your flexible working arrangements involve lengthy periods of home working, you will probably come to realise how important those impromptu chats with colleagues are, and how much you miss the ability to share ideas quickly and easily with others. We may all be Zoomed out at the moment, but staying connected is hugely important when working flexibly.

Also, ironically the distinction between home and work can become less clear when you work flexibly, as the ability to work “anytime, anywhere” becomes the temptation to work “all the time, everywhere”. Switching off seems to be much more difficult when working from home or during non-standard hours, and making the time to have a proper break invariably features low on the ever-growing list of things to do.

It’s good then to see some firms making a real effort to provide support to employees struggling with similar challenges. For example, at Capsticks we’re asked not to schedule meetings over core lunchtime hours so that colleagues can get outside before the early nights set in, and we’re encouraged to use the firm’s Friday late afternoon update as a cue to log off for the weekend. We’ve also all added a sentence on our email signatures which makes it clear that if we are emailing outside of normal business hours, it doesn’t mean we expect a response out of hours.

There’s still a lot that the legal sector can learn from the pandemic. Agility is more than the ability to work from home and home-working doesn’t suit everyone. Tribunal and Court hearings can be run virtually. Support staff can work from home and working times can be flexible. Most importantly, the ability to hang your jacket on the back of your office chair no longer defines whether you are a good lawyer or not.

But whatever the culture of your organisation, it’s fair to say that Covid has forced the issue of flexible working in a way and at a pace that simply wouldn’t have happened otherwise. That can only be a good thing – and something good has to come out of Covid, right?!

Further information on making a flexible working request is available at www.acas.org.uk/making-a-flexible-working-request. ■