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Farrer & Co | National Work Life Week: How to make flexible working for all

With National Work Life week upon us, it’s a good moment to think about flexible working. National Work Life Week encourages us all (both employers and employees) to focus on work-life balance and wellbeing at work. But particularly for employers, this week represents an opportunity to highlight and promote your approach to flexible working and other work-life focused policies and practices.

The world of work is changing, and the concepts of work-life balance and wellbeing remain high on the agenda. Working flexibly isn’t just about working mothers or those with caring responsibilities anymore – flexible working is for everyone, particularly in an increasingly busy digital world. From the ageing to generation Z, the traditional 9-5 is no longer ‘the norm’. In fact, according to a recent YouGov survey, only 6% of employees fall into that category. The survey also found that 58% of employees would choose to start work earlier than 9am if they could leave earlier than 5pm.

What’s key is that flexible working doesn’t mean the same thing to everyone: for some it is about family commitments, for others it is about personal commitments outside of work. It may also be that different skill sets should be used at different times of the day, week or year. The benefits of employees working flexibly, and having greater autonomy, are now well documented – both in terms of attracting the best candidates and in maintaining a loyal, motivated and productive workforce. Employers should therefore appreciate that a rigid set of rules won’t necessarily benefit business.

Flexible working – what does it look like?

With 42% of us working flexibly in some capacity already, this may be familiar territory. But arrangements can include: part-time working, full-time working (if currently part-time), reduced hours, compressed hours, flexi-time, a nine-day fortnight, term-time hours, annualised hours, job sharing, homeworking or other working location options.

A brief review of flexible working            

  • Every employee with 26 weeks’ continuous service has the right to request flexible working. The emphasis is intentional, and employers should ensure this is understood by their workforce: often childless employees feel that they have fewer work-life balance options and that flexible working arrangements are biased towards those with childcare commitments.
  • Under the statutory scheme, an eligible employee must make a formal application for flexible working (in writing, dated and containing certain prescribed information). However, many employers allow their employees to make informal requests, for example, where the requested variation is not permanent or for employees who are not eligible to make a statutory request.
  • The application must be dealt with in a reasonable manner (see the Acas code of Practice here), and the employer must notify the employee of its decision within a period of three months (unless a longer period is agreed between the parties). That includes any appeal. Employers usually schedule a meeting with the employee to discuss any request and/or to put forward alternatives. Employees have a right to be accompanied if the meeting is part of the formal process (though not by a trade union rep, only by a work colleague).
  • In refusing an application for flexible working, employers must fall within one (or more) of the eight specified reasons (the burden of additional costs; detrimental effect on the ability to meet customer demand; inability to reorganise work among existing staff; inability to recruit additional staff; detrimental impact on quality; detrimental impact on performance; insufficiency of work during the period the employee proposes to work; and/or planned structural changes).
  • There must, therefore, be a sound business reason for the refusal. Responses like ‘there are already too many people working part-time’ or ‘if we say yes to you, everyone else will ask’ just won’t cut it. If the request is not possible, make sure the decision-making is documented. And think about alternative options if the exact request can’t be accommodated.
  • Keep possible discrimination claims in mind: think about all of an employee’s potential commitments, be it their own religious or health commitments, or their caring responsibilities. And make sure that employees who have made a statutory request do not suffer detrimental treatment (eg not being considered for promotion).
  • Although an employee cannot insist on one, trial periods can be useful – they help clarify concerns and ensure the changes are acceptable to both the employer and the employee. But it makes sense to agree (and preferably document) an extension to the decision period where, taking account of the trial period, the employee is not likely to be notified of a final decision within the three-month period.
  • Employees can only make one formal request in any 12-month period. Once accepted, this represents a permanent variation of contract and the employer is obliged to provide a written statement of changes to the employee’s terms and conditions within one month of the changes taking effect.
  • Employers should ensure that they have a relevant, clear and up-to-date policy in place and that in terms of guidance and support, management lead from the front. More widely, firms should see this as an opportunity to rethink workplace culture, explore technology in order to improve communications within teams which work flexibly and create peer-to-peer networking opportunities.

Some observations going forward

So, if working flexibly is good for both business (and therefore the economy) and employees (and therefore society more widely), what does the future hold?

It seems likely that we will see more, and more nuanced, flexible working. A couple of interesting examples which have grabbed the headlines recently:

  • Accountancy firm PwC has launched a scheme that allows some new recruits to work the hours they want. When applying, people list their skills and preferred work patterns. The firm then matches recruits to relevant projects rather than specific roles. Working options range from shorter weekly working hours to only working for a few months a year. The intention is to attract the best people in a market where people are increasingly transitioning in and out of work throughout their careers.

Ultimately, the workforce is diverse and varied and one size doesn’t fit all. Given the greater demand for flexibility from employees, employers who start from a positive perspective and seek to overcome potential issues are likely to reap the benefits in the long run (eg by ensuring flexible workers are accommodated when organising important meetings, events and training). And the benefits go beyond operational efficiency - maintaining a diverse talent pool and addressing wider issues such as career progression and the gender pay gap are equally important.

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