Making flexible working the default

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.

■ Our 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.

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 excuses which were used pre-pandemic are now less popular, and/or are more difficult to justify. That does not mean, however, that they may not be relevant in particular circumstances.

What became evident throughout the mandatory working from home period was that some employers may have initially experienced some challenges with adapting to working from home, or hybrid working, but it has been embraced by many.

As the mandatory stay at home period was lifted there was initially an influx of flexible working requests. Pre-pandemic employers have generally sought to reject a request for flexible working on the basis of:

■ Extra costs – the pandemic showed that employers were willing to spend money to ensure that employees had the necessary equipment [telephones/computers/desks and chairs etc] to carry out their work effectively and safely whilst working from home.

■ Negative effect the quality or negatively affect performance – These two excuses to reject a statutory request are now less frequently relied upon as many employees have proven that roles can be carried out satisfactorily, and for some, even better, whilst working flexibly.

Professional advisory roles can usually be effectively carried out remotely. Previously in the legal profession there was a culture of presenteeism.

There was also an assumption that those whose work is exclusively litigation based would not be able to carry out that work to the same standard of service if they were not physically in the office or in Court. The same is true of transactional and advisory work, where some element of in-person contact was assumed to be necessary. However, with the onset of virtual hearings, and the embracing of corporate data rooms for transactions this is becoming less necessary.

In the legal profession there is a crucial need to ensure that trainee solicitors have adequate training and supervision to meet the requirements of the regulator(s) and also to fulfil the individual training and development needs of the individual. The key consideration from an employer’s perspective here is how that training can be effectively administered and delivered if the supervisor/supervisors are working remotely. This is particularly important if trainees [who are predominately graduate level roles] are required to be in the office, whilst more senior members of the profession are keen to work from home. The quality of the training is also important as trainee solicitors make seek support and mentoring, or for reviews of their work/feedback on their work, from those who are physically in the office [who may not have the same level of subject expertise, or training on how to train trainee’s] than those who are working remotely.

As a wider societal point, flexible working can help those who are underrepresented – including working parents, and especially single-family parents. If there are positive changes which encourage flexible working then flexible working may increase in popularity, and it may reduce the stigma in saying to a potential employer, for example, “these are the hours which I would like to work for you”.

There is a potential downside to the rise of flexible working, and on which we would encourage more debate, and that is whether there is the risk that it could create a barrier and an imbalance between those by the nature of their work can work remotely, and those whose roles require them to be physically present to carry out their jobs. If there is the perception that working remotely, provides a better quality of life, does that imply that those who roles are not suited to flexible working cannot work flexibly and are destined to have a lesser quality of life? Any moves to attempt to redress this distinction would have to be carefully considered to ensure they do not inadvertently discriminate against those underrepresented groups which flexible working patterns are helping to remain and develop in the workplace.

If no, please state which reasons from the list above are no longer valid and why.

As noted above, we consider that the reasons remain valid. Although some are less likely to be used.

Employers and employees may benefit from more special guidance on the defence of the business “planning structural changes”, including the impact of revealing that information to employees.

Do you agree that employers should be required to show that they have considered alternative working arrangements when rejecting a statutory request for flexible working?

Agree.

Please give reasons for your answer.

If this were a light touch obligation which required employers to note that they had considered alternative arrangements when rejecting a statutory request then this approach might not be successful. If, however, employers were obliged to evidence what specific alternative arrangements they had considered [and to share that with the employee] then this may lead to further dialogue and exploring a common ground. This approach may lead to an informal request being made, and potentially accepted, by the employer, if the employer has indicated that they would be open to such suggestion. We consider that this open and transparent approach would be more likely to increase engagement and encourage the parties to find a workable solution.

Would introducing a requirement on employers to set out a single alternative flexible working arrangement and the business ground for rejecting it place burdens on employers when refusing requests?

Yes.

If yes, would this requirement have an effect on the time taken by employers to handle a request?

Yes, we anticipate that it might take additional time in the region of 10 hours per employee. This would include the time of the line manager/shift manager, and potentially other managers and the HR function and accounts, or the SME owner. However, the time requirement would be substantially reduced when requests come more frequent and set processes/standard forms develop.

Do you think that the current statutory framework needs to change in relation to how often an employee can submit a request to work flexibly?

No.

Please give reasons for your answer.

There is an underlying concern that vexatious employees may wish to submit multiple requests when the underlying reason for the original request has not altered, and this could create disputes and result in litigation.

Do you think that the current statutory framework needs to change in relation to how quickly an employer must respond to a flexible working request?

Yes.

Please give reasons for your answer.

The current regime does provide employers with a long period of time in which to consider an application for flexible working. Employers are simply able to wait and provide their response.

The downside to this approach is that it may reduce the communication between the employee and the employer, rather than encouraging dialogue with a view to encouraging the parties to come to a workable solution, and perhaps involving other interested parties in the dialogue, such as employees with similar roles who may benefit from flexible working arrangements. For example, other employees who may wish to consider a job share with the employee making the application. This could result in increased engagement from the employees, and also save recruitment costs for the employer.

If the Right to Request flexible working were to be amended to allow multiple requests, how many requests should an employee be allowed to make per year?

No amendment is required.

Please give reasons for your answer, including any consideration about costs, benefits and practicalities.

There is an underlying concern that a vexatious employee may wish to submit multiple requests when the underlying reason for the original request has not altered, and this could take up a lot of management time, create disputes and develop into costly litigation.

Especially, if the employer is not taking advice on the formal timelines for reply in each instance. This could have the unfortunate consequence of an employee being able to bring a formal a claim in the employment tribunal for a breach of a statutory obligation, and – depending upon the form of the complaint – be held to be a protected disclosure, thus potentially opening up the employer to litigation.

If the Right to Request flexible working were amended to reduce the time period within which employers must respond to a request, how long should employers have to respond?

More than two months, less than three months.

Please give reasons for your answer, including any consideration about costs, benefits and practicalities.

Our members represent employers of all sizes from SME’s to global businesses and employees across all areas of seniority. Some of the former may not have any internal HR function, and may rely upon external advice and support.

Some employers may not be aware of the timescales to reply to statutory requests, and there needs to be a balancing exercise between the legitimate expectation of an employee for their employer to consider their statutory request, and the ability of the employer to provide a response.

Are you aware that it is possible under the legislation to make a time-limited request to work flexibly?

Yes. Although this is very rarely utilised.

What would encourage employees to make time-limited requests to work flexibly? Please provide examples.

Employees could be encouraged to make time limited requests to work flexibly if they were made aware of the position under the current regime. This could be included in a policy document, or within an ACAS guidance note.

Employers and employees would benefit from an awareness campaign of existing rights, including all the potential varieties of flexible working and how they may be utilised.

Please share your suggestions for the issues that the call for evidence on ad hoc and informal flexible working might consider.

The Government may wish to call for evidence from employers who have rejected a formal request for flexible working and then set out an informal proposal to an employee, or suggested that an employee may wish to make an informal request which is outside of the statutory regime. Also to consider whether there was any other type of leave which could have been utilised as an alternative to an informal request for flexible working.

The call for evidence may also wish to seek evidence from employees who have made informal requests to work flexibly and how those requests have been considered. In particular, the time that it has taken their employer to reply to their informal request and whether it was quicker than the current statutory time limits.

As a general point there appears to be a growing group of voices who are interested in ensuring that employers advertise the desired hours of any role, and to also require employers to advertise whether they would consider a job share. To encourage that approach may bring about a spirit of openness between the employer and job applicants and also encourage employers to carefully consider what they are looking for in the new role, and what is essential. It may also help to retain talent and be a way to access talent.

It needs to be considered as to whether there need to be any modifications to the current immigration regime to encourage flexible working. For example, if there is a restrictive requirement that an applicant needs to earn a specific level of salary, or to work a minimum number of hours, in order to qualify then for the Government to consider whether those requirements can be modified to reflect that the role is proposed for flexible working.

We are grateful to the following talented legal professionals for their contributions towards our reply to this call for evidence: Rachel Kimberley (Just Group Plc) and John Morgan (Eversheds Sutherland). Thank you. ■