ARTICLE
Making flexible working the default This is the response of the Law Reform Sub-Committee of The City of Westminster and Holborn Law Society (the Society/CWHLS) to the Department for Business, Energy & Industrial Strategy’s call for evidence on Making flexible working the default.
CWHLS
represents the 10,000 solicitors across Westminster & Holborn, and provides a forum for networking and promoting professional legal services in the 21st Century. We are non-political. Our Law Reform Sub-Committee seeks to engage in debate and dialogue regarding law reform, and to offer opinions and views about proposed changes to, or developments of, the law. In replying to this consultation we do not seek to support the interests of either employers or employees and the Law Reform Sub-Committee has not carried out a survey of all employment lawyers who are members of CWHLS. Our Law Reform Sub-Committee is chaired by Philip Henson, Partner and Head of Employment at ebl miller rosenfalck, a leading international law firm. Our members who practice in employment law may represent employers or employees, or both. Our employment law specialists are frequently instructed to provide legal advice at various stages of the employment relationship, including preemployment. regarding flexible working. ■ O ur members who are employer focused are instructed to consider flexible working during the employment relationship. This can include formal and informal requests under the current flexible working regime. Often this will involve drafting and updating flexible working policies and reviewing and updating policies and guidance each year taking into consideration changes to case law and best practice. Solicitors representing employers may also be asked to review the suitability of granting or refusing requests for flexible working, and responding to any grievances, or employment tribunal claims, arising out of decisions relating to flexible working. ■ Our members who are employee focused are often instructed to advise on formal and informal requests for flexible working, and any appeals of such decisions, and also relating to grievances in response to a decision to refuse a flexible working request, and/or to assist with litigation relating to a request for flexible working. In preparing this response we have sought to use plain English and, where possible, to remove the use of legalese, so that it is accessible to all who read it. Our Response We now set out our replies to the current consultation. For ease of reference we set out the questions of the consultation below and our responses in italics. Who are you? CWHLS represents the 10,000 solicitors across Westminster & Holborn, and provides a forum for networking and promoting professional legal services in the 21st Century. We are non-political. If you represent employers or employees, who do you represent? CWHLS represents the 10,000 solicitors across Westminster & Holborn, and provides a forum for networking and promoting professional legal services in the 21st Century. We are non-political. 12 | CENTRAL LONDON LAWYER
Do you agree that the Right to Request Flexible Working should be available to all employees from their first day of employment? Agree. Please give reasons for your answer, including any considerations about costs and benefits that may affect employers and/or employees. At present, the flexible working regime contains a number of broad exceptions which permit an employer to reject a request while alluding to one of the reasons without detailed consideration of an application. While we acknowledge the legitimate interests of business in being able to reject applications where this would cause undue difficulty for operations, the result of the breadth and lack of substantive standard against which to measure any requests does mean that the current regime can generally be regarded as a procedural obligation that does little to truly change working cultures or offer genuine flexibility to employees. This proposed change would provide a catalyst for employers and employees to understand more about what flexible working means and the options around flexible working, which are not just restricted to requests to work from home, but which is the most common subject matter of a request. If implemented correctly, with adequate awareness campaigns and educational support (including specialist guidance from ACAS) – and if the business community was supportive of the suggestion – then it has the potential to transform the working relationship and the future of work without reduction in output (contributing to remedying the productivity gap). In the future there is the potential for flexible working to be as simple as opting in to receive cookies on a website, selecting whether you are seeking flexible working. For example, for employers to set out what they are looking for and to seek to find a solution by seeking to match the hours that an applicant is looking for. There are many challenges to the proposed approach, and one will be how employers deal with a request for flexible working at any time when they have other members on the same team, or within the same grouping of employees, who might be interested in working flexibly, but either are not aware of their rights, or who put in a request later. In the latter situation an employer may feel that it is not able to provide flexible working to the more recent applicant. It may be necessary to implement stronger protections for those who seek flexible working in order to ensure prospective or current employees feel able to ‘tick the box’ that they seek flexible working without fear of reprisal. Given your experiences of Covid-19 as well as prior to the pandemic, do all of the business reasons for rejecting a flexible working request remain valid? Please answer this question from the perspective of the employer. Yes. If yes, please give reasons for your answer. Whilst the list of business reasons remains valid, several of the
