Flexible working – beyond the law

This post is the full version of my guest post for Anywhere Work from a few weeks ago, with more content, more examples and more links.  It is quite literally Christmas come early.  Feel free to send me mulled wine and mince pies as a token of your gratitude… If you find this topic interesting, you would be most welcome to join the LinkedIn Flexible Working Discussion Group.  It’s an open group so join in the debate!

The long-awaited announcement

On 13th November 2012, the Deputy Prime Minister Nick Clegg announced that the original Coalition pledge to extend the current employee “right to request” flexible working will be honoured, probably in 2014. He also announced the Government’s plans to radically overhaul the existing maternity leave regime in order to give parents the option to share all but 2 weeks of the child care in the first year of a baby’s life. There is much to say about shared parental leave, but it is the proposed extension to the statutory flexible working regime that will bestow a previously limited entitlement on every employee in the land.

Media coverage in certain quarters portrayed this development variously as somehow “anti-business”, yet another administrative burden, something to be feared, avoided and wriggled out of where possible. These viewpoints not only ignore the limited impact on businesses of the existing regime (see the CIPD’s research on this aspect and more generally but more importantly fail to acknowledge a clear business case for flexible working.  So let’s ensure balance of approach by having a closer look at these now:

The current regime

The 2 most important things to note about the “right to request” as it stands are these:

  1. It is a right to request a variation to working arrangements in order to care for a child or adult. Not “demand”, not “insist on”, not “have”, merely to ask for and to have the request considered properly. Employers can say no, as long as their reason for declining the request falls within one of 8 widely drawn categories.
  2. The reference to “flexible working” can be misleading as the employee’s request, if granted, will lead to a permanent variation to their working arrangements.

For a summary of the existing system, including the strict procedural requirements, see this excellent guide by Acas

You may be thinking “Hmmm, that doesn’t sound all that flexible” and you would of course be right.  Indeed, several recent research studies (detailed further below) indicate that the vast majority of flexible working arrangements are agreed outside of the statutory regime, either via a formal employer scheme or on an informal basis.

The business case for flexible working

So if the existing entitlement is merely to ask, why would businesses bypass a statutory system in favour of voluntary agreement on flexible working practices?  Quite simply, because such practices are proven to benefit business.

Research conducted by the CBI in 2011 found that, of those businesses in their sample who offered one or more types of flexible working to staff, respondents cited the following benefits: improved employee relations (74%), boosting recruitment and retention (61%), improved productivity (37%) and lower absence rates (38%).  What’s not to like?

More recently a study by the REC (Recruitment Employers’ Confederation) Flexible Work Commission which was published in September 2012 sets out valuable qualitative examples from a number of the respondents to the research, in addition to the customary statistics.

One striking example (at page 17) was that of a manufacturing firm specialising in steel fabricated components.  In the face of significant economic pressures at the beginning of this recession, the business needed to take drastic action.  Staff costs and overheads were unsustainable in the context of reducing demand in its products.  A textbook redundancy case study, I’m sure you’d agree.

But no.  This firm put in place “compressed hours” across the entire workforce with the agreement of its staff and the relevant trade unions.  They started doing 5 days’ hours in 4 and closed the factory on Fridays.

Every single job was saved.  No-one lost pay.  The employees’ travel and childcare costs came down.  The company’s overheads reduced.  Staff turnover dropped.  And, get this, employees are turning down better paid jobs elsewhere in favour of sticking with the arrangement as it now is.

If that’s not a win-win situation, then I’ll eat my laptop.

What will the extended statutory scheme look like?

For the unconvinced, a brief word on what the extended scheme will probably look like.

All employees, regardless of their external commitments will have the right to request an alternative working arrangement once they have been employed for 6 months.  The current hoop-jumping procedure entailing timetabled meetings and prescribed reasons for refusal, will be replaced with an obligation on the employer to consider requests “reasonably” within a “reasonable” timeframe (Acas will publish guidance and examples to assist employers on this front).  It will continue to result in a permanent change to the working arrangements of the employee in question.

Most importantly, and something which may have been missed by many in the frenzy of media coverage, employers will still be able to say no.

Why wait?

Many businesses resist implementing flexible working arrangements because they fear losing control of their workforce.  The term “flexibility floodgates” is bandied around by the doubters and the cynics but this view portrays businesses as helpless entities that continue to exist in spite of their workforce rather than because of it.    The same people who believe that employees can’t be trusted under any circumstances.  The ones who are getting left behind in terms of productivity, staff turnover and employee engagement.

Businesses need to understand that there are ways that they can give a new arrangement a go without being bound into it for ever more. If it works for your business, keep doing it. If it doesn’t work for your business, stop doing it.  As long as the ground rules are clearly stated and the arrangements are monitored, this shouldn’t be a problem.

By way of illustration, the REC study gives the example (at page 25), of BT who pioneered a large scale home-working programme with the intention of saving office space and reducing environmental impact.  Although considered successful overall (in 2006 BT reported an annual saving of $950,000,000 on office space alone)  more recently BT took the step of pulling 1000 homeworkers back into an office environment as there were certain areas of the business where the home work model was not delivering the required results.

Businesses, like BT, that take the lead in advance of the statutory scheme being extended have an opportunity to design and implement a scheme that works for them.  Moreover, I would happily bet that the vast majority of employees would far rather participate in an employer-instigated scheme than force their employer to jump a series of procedural hoops, the outcome of which is potentially refusal or the feeling that they will somehow be perceived a troublemaker who isn’t “committed”.

Get help

Need to make your arrangement legally watertight? Trial periods, rights to withdraw, calculating holiday entitlements – employment law specialists (ahem…*gentle plug*) can help with all of that.

Need a system to keep track of remote workers’ performance? There is technology out there to help with that.  Have a look at this one for starters

Health & Safety for homeworkers?  There are plenty of consultants who specialise.  Here’s just one I found.

Enticing top talent by offering flexible roles?  If you happen to be based in the East Midlands then your first port of call should be WorkClever, a regional pioneer of just such a technique. If you are further afield the CIPD and Timewise Recruitment have come together to provide a free job design helpline for employers who would like to explore flexibility in the context of their business.

A willingness to invest a little time and resource upfront could deliver huge benefits for business.  If a piece of physical equipment was proven to improve productivity to the point where the costs involved are outweighed relatively quickly then the decision to invest would be a no-brainer, right?

So what are you waiting for?  Here’s to a flexible 2013!

This entry was posted in Flexible working, Government policy, Hot topics, Making sense of employment law and tagged , , . Bookmark the permalink.

One Response to Flexible working – beyond the law

  1. Pingback: Breastfeeding in public – tolerate or facilitate? | teagoemplaw

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s