Employers need to get smart about the ‘F’ word

3rd September 2015

Amanda Okill

The world of work is changing and so are the expectations of employees, with a growing number looking for flexible working opportunities.

Evidence suggests that flexible working can work extremely well and attracts talent, a fact that business leaders readily recognise with nearly 90% of senior executives across the world believing that ‘organisational agility’ is critical for business success*. Yet ironically, it is still seen by many as an unattractive and frightening concept.

“It’s essentially a dirty workplace word,” says Amanda Okill, an Associate at leading south east law firm Furley Page who specialises in employment law.

According to recent research by Timewise, a national recruitment service specialising in flexible vacancies, 46% of people employed in the UK want to work flexibly but only 6.2% of the UK job advertisements with annual salaries of over £20,000 or more mention flexible working.

“As an employment lawyer advising individuals who work flexibly, I find the attitudes in certain workplaces to this issue not only worrying but devoid of evidence,” adds Amanda.

“Not long ago I advised a client who was in a well-paid job and applied to work flexibly on return from maternity leave. She was granted a four-day week with a day at home. She made herself available on several occasions on her ‘day off’ for urgent matters and put in long hours on her working days.

“But the arrangement didn’t work. My client was systematically excluded from projects and consequently her output did not justify her salary. Managers in her department have been quite open as to why this is the case – ‘she’s not always there’.  Never mind the investment her employers have already made in her employment and ongoing professional development. Never mind the fact that she does not actually have to ‘be there’ in any event.

“The irony here is that she has all of the gadgets, brilliant inventions of modern-day technology which her employers went to the effort of installing in her home and which would enable them to contact her. Why bother if they are not used?

“You’d be forgiven for thinking that this was an SME with limited resources but it’s actually a large organisation with both offices and clients based abroad,” says Amanda. “Its website promotes it as offering a ‘work / life’ balance. Does it genuinely embrace flexible working?

“What we found is that a surprising number of part-time workers have slowly been paid off over the last few years, and this happens time and time again in many organisations. And with the pay-off goes a wealth of skills, knowledge, experience and, very often, a career.”

So what is flexible working, and what are the common misconceptions about it?

Section 80F of the Employment Rights Act 1996 confirms that a qualifying employee may apply for a change in terms and conditions if the change relates to the hours and times they are required to work, as well as the place of work.

The term ‘flexible working’ incorporates any arrangement which gives some degree of flexibility on how long, where, when and at what times employees work. It should not be seen as code for part-time work – a flexible worker could be a full-time employee who simply carries out some of their duties from home.

“Unfortunately there are a number of gross misconceptions about flexible working,” says Amanda. “One is that it’s just a women’s issue. While it’s true that women with caring responsibilities are more likely to benefit from flexible working arrangements, it’s of interest to a far broader group.”

A report published by the UK Commission for Employment and Skills 2014, for example, contained the startling statistic that 92% of the Generation Y participants (those born in the 1980s and 1990s) identified flexibility as a top priority when selecting a workplace. Timewise reported one million men now choose to work part-time. There are 5.4 million people working part-time in the UK by choice, and a further 8.7 million who do not have that flexibility and want it. The figure is nearly half of the working population in the UK.

“Flexible working benefits workers who would historically have been retired and who want to maintain a working life, just not full-time,” adds Amanda. “It also benefits the so called ‘sandwich generation’, people who are caring for elderly parents as well as children at the same time. The right to request flexible working is available to all employees.”

Some employers fear that if they turn down a flexible request from a woman, they may be sued for sex discrimination. But, as Amanda explains, the Right to Request legislation does not create a right to work flexibly or part-time.

“It simply provides a statutory framework through which a request from an eligible employee to work flexibly must be considered,” she says. “The request can lawfully be rejected if it cannot be accommodated and if due consideration has been afforded to it. Business reasons include the burden of additional costs, an inability to reorganise existing staff, a detrimental impact on quality, performance, or ability to meet customer demand, planned structural changes, and insufficient work for the periods the employee proposed to work.”

In reality, since the Right to Request came into force, relatively few claims have made their way to the appellate courts. Most flexible working claims have been made together with claims for direct or indirect sex discrimination, claims which could have been made before the Right to Request came into existence.

Another common misconception is that flexible working is bad for business, yet research shows that this is not the case. One report* highlights long-term advantages associated with improved employee work-life balance and job satisfaction. A case study in the report features Deloitte, the business advisory firm which, in 2014, introduced a programme aimed at increasing agility around how people organise their working lives. The programme is based on three principles: a shift from visibility of the individual in an office to actual output; mutual trust; and two-way open communication.

By focusing on the output rather than working hours, Deloitte is moving away from a culture of ‘presenteeism’ where people feel they must seek permission for adjusting the way they work.

“Flexible working is not suitable for all job types and there are genuinely good business reasons for refusing it in many cases,” concludes Amanda. “However, attitudes and expectations are changing so it’s worth exploring how it could work, approaching it with both an open mind and a genuine desire to make a success of it.”

For further advice, contact Amanda Okill on 01227 763939.

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