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HCR Law Events

5 October 2021

What next for flexible working?

Flexible working is here to stay. For many, the once temporary “work at home” message has become a welcome addition to their business culture. Many are keen to retain the flexibility that working from home provides whilst still experiencing the clear benefits that come with working in the office.

Removing the commute and even the noise and interruptions that can come with working in the office are a great relief to many (myself included) and working from home does often allow you to plan your day more freely.

However, the feeling of formality associated with needing to “book in” to speak to a colleague just didn’t feel right for me. It is so much easier, I find, to walk over and ask a colleague a question than it is to send a Zoom or Teams invitation or to set aside time for a formal call.

While Zoom and Teams have been brilliant tools for connecting with friends, family and colleagues based in far flung locations throughout the pandemic, it often feels far better to simply ask “have you got a minute?”, when it comes to colleagues who, in ordinary circumstances, sit within shouting distance.

I have heard many explain that, as we move away from the enforced restrictions of the various lockdowns, their business is going to be operating a “hybrid” model which will encompass some home working and some office-based working. However, after the past 18 months, many may wish to be working exclusively from home and will therefore be looking at making flexible working requests, if they haven’t already.

Until the recent government announcement in September 2021, the right to request flexible working was a statutory right only available to employees who had 26 weeks’ continuous employment at the date of the request.

However, the government has confirmed its intention to give all employees the right to request to work flexibly from day one. A flexible working request can relate to the hours, times or place of work.

We will have to wait and see whether there is a sudden influx of flexible working requests (and potential refusals) but the move towards flexible working for all, from day one, will be welcome news to many. On the other hand, the right to request flexibility sooner, which is effectively what has been promised, may not make much difference to the flexibility actually afforded to employees in practice. That is because employers have the right to refuse the request and, some critics say, without too much difficulty.

At the moment there are eight grounds for refusal set out in the legislation. These are:

  • The burden of additional costs
  • Detrimental effect on 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 periods the employee proposes to work
  • Planned structural changes.

It is true that the above grounds are far reaching, and it is not too difficult to see how an unwilling employer might be able to identify one or more as reasons for their refusal. But it is likely to be far more difficult for an employer to refuse a flexible working request where an employee has been working from home successfully for the past 18 months. In fact, the last 18 months have almost felt like an ongoing trial period for working from home – and most businesses seem to be happy with the results. Even if they aren’t, if employees are able to rely on their performance over the last 18 months to prove that flexible working can work, even the most reluctant employer might be unable to refuse.

If the days of the office space being the primary work area are a thing of the past, many will be glad to hear that. But not everyone – I asked my colleagues for their views on working from home and what flexible working meant for them.

 

Michael Stokes, head of employment and immigration, Worcester

“I liked the opportunity to take some genuinely quiet time on a day when I was going to be working from home, with no need to get ready for work or travel to and from work; to think. The buzz of working with people is great for many things, but a bit of quiet thinking time was calming and productive. I’ll definitely be doing more of that as and when things are more ‘normal’.”

 

Nicholas Hall, partner, Northampton

“I’ve found many pluses to flexible working.

I’ve “met” on screen via Teams or Zoom meetings clients that I’ve not seen for quite a while, or indeed never actually met and was unlikely to do so (such as those based in the US).

Not having to commute also means that, as an early bird, I can crack on with work much earlier in the morning and get so much done when I’d otherwise be sitting in a queue of cars switching between radio stations to find the day’s least annoying and shouty DJ. I can also avoid to a large extent travelling around the country to attend meetings with witnesses; most of those are now held remotely.

Further, being able to work without the usual office noise and other distractions makes heavyweight drafting, such as witness statements and defences, so much easier and quicker.

It’s not all puppies and rainbows though. Taking over my dining room as an office isn’t ideal, and the previous clear separation between office and home life has become blurred, which is not really a good thing.

Further, a loss of, or at least reduction in, working alongside colleagues in my team and other teams dents somewhat the feeling of all working together. But the gradual, albeit not total, return to the office for at least some days each week helps to smooth out that dent to an extent. In addition, a flexible approach to a return to office-based working means I can make sure I time it so that I’m in the office on the day one of our colleagues routinely hands out sweets!

In essence, flexible working provides the ability for me to work where it’s most efficient to do so.”

 

Rebecca Kirk, head of the Hereford office

“I found the enforced ‘flexibility’ during the pandemic to be a bit of a double-edged sword. On the one hand, I enjoyed working from home and some of the benefits that come with that – not having to commute, being able to plan my day without the usual interruptions in the office and, dare I say it, being able to wear my slippers and put the washing machine on during my lunch break.

On a more serious note, as an employment lawyer and a working mother myself, one of the biggest benefits in my view was the fact that the pandemic forced employers to think differently about flexible working and, I hope, in most cases, proved that you don’t have to be tethered to a desk to deliver.

In fact when you allow flexibility (which isn’t the same as working from home) and manage it well, productivity can be dramatically improved – not to mention the improvements that can be seen when it comes to equality, diversity and inclusion in the workplace and employee wellbeing.

That being said, flexible or smart working is not without its challenges. As a manager during the pandemic, I had to re-think my management style and take the time to check in – perhaps more than I would have done in the office. When you see someone every day, it is often easy to spot when they are having a bad day, when they are struggling with something or when they are over (or even under) worked.

That isn’t the case when working remotely and so I had to make time and plan for management tasks far more than I would have done in the office, where management and supervision happen more organically. I missed the buzz of the office, I missed seeing my clients in real life rather than on a screen and I missed the opportunities for collaboration, joint working and the sharing of ideas that come from the office environment. I also missed being able to pop to the local deli for lunch rather than having to make it myself!

For me, a hybrid smart working model is definitely the way forward – one where I can be in the office, with clients, at home or elsewhere as needed.”

 

Liz McGlone, partner, Birmingham

“Flexible working to me means being able to do my job and engage with other aspects of my life, achieving a balance that was previously missing.

I enjoy being able to spend more time with my son, but I miss face to face interaction with colleagues. I started a new job during the pandemic and integrating into a new firm has been challenging whilst working from home.”

 

Guy Hollebon, legal director, Ross-on-Wye

“Smart working allows a much more effective and efficient use of the team’s time. The firm’s client base is national, and we deal with tribunal cases all over the UK; with hearings being largely conducted via telephone and video link, it saves a considerable amount of travel time. I have also found that staff feel empowered by smart working – they are trusted to ensure that, with the flexibility in their working pattern, their work output is at the level and to the high standard that is required of them.”

 

Ellis Jessica Walby, solicitor, Cheltenham

“For me, working from home has been an incredibly positive change – personally, professionally, domestically, mentally and logistically.

As a full time lawyer and full time solo parent, the juggling act is real. Gaining greater agility in how I service my clients, contribute to my team and ensure that my son has his one parent who’s physically “around” more, is invaluable. The juggling act still isn’t easy, but the “mum guilt” I had pre-Covid has certainly lessened – and quite considerably.

I love my job more than ever before – and a huge contributing factor is that it no longer keeps me at a desk in the office 100% of the working time, away from important home life, in the way it did before. It also allows me to pro-actively demonstrate a sound work ethic to my son, who has seen me homeworking during the last 18 months – a vital quality that, in my view, children should ideally learn, and recognise, from a young age.

As for flexible working, I think the name is too often still associated with statutory flexible working requests of, hopefully, times past. To me, smart working or agile working is a better phrase – this really reflects the fluidity of the way many of us are now working. Equally, agile working, or smart working, isn’t a one size fits all – and that’s what is so wonderful about it.”

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About the Author
Rory Ford, Solicitor

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