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When flexibility snaps

With flexible working arrangements becoming a part of everyday life in most businesses, Verity Sayers, Associate at Nabarro LLP, explores whether employers run the risk of creating a divided workforce and suggests steps to take to minimise legal risks.

[body] Supported by the government, assisted by technology and popular with employers and employees alike, the flexible working revolution is well underway. A 2013 study by the Institute of Leadership and Management (Flexible Working: Goodbye Nine to Five) found that 94 percent of all UK organisations now offer some form of flexible working and that the majority (73 percent) are supportive of it. Yet flexible working is problematic for many organisations. The same study featured some of the concerns managers still have about flexible working. One of these is that unequal flexible working entitlements can cause resentment amongst the workforce: 48 percent of managers agreed with the statement that allowing some employees to work flexibly causes resentment, compared with 30 percent who did not. It is no surprise that flexible working causes resentment, because it is not always fairly implemented by organisations and, inevitably, businesses reach a 'tipping point' when flexible working is not practicable for all employees.

The principle that employers must act fairly and reasonably towards their employees is well understood. However, the law itself does not currently promote fairness, for example, by granting the right to request flexible working to some categories of employees (parents and carers) and not to others. Although this is set to change this year, it is still unusual for organisations to offer all employees the chance to work flexibly. Even where organisations extend the right to request flexible working to everyone, differing attitudes among managers can result in some parts of the organisation being more receptive than others.

Employers who do not adopt a consistent approach to flexible working risk creating discontent within their business. Employees who consider that they have been treated differently to other employees without good reason may bring a variety of claims against their employer. These include, for example; claims of constructive unfair dismissal and discrimination. The risk that a claim will be successful is heightened when there is no obvious justification for an employer to refuse a flexible working request, or to treat a flexible worker differently to his/her colleagues, particularly if the refusal or difference in treatment seems contrary to the organisation's policy or current practice. So, how can employers reduce resentment towards flexible working and protect themselves against legal risk?

Strive for consistency – consistency is key to avoiding and defending employment tribunal claims. All employers should have a clear policy on flexible working, which should recognise that flexible working may not be possible for all employees. Managers should be trained on the importance of taking a consistent approach where possible, especially where it seems that their personal practice may not accord with the organisation's policy on flexible working. Challenge requests to work flexibly where necessary – flexible working arrangements are only successful when both parties are happy with them. Problems sometimes stem from employers seeking to accommodate employees' requests to work flexibly when their role is genuinely unsuited to flexible working (or to the particular arrangement proposed). Don't be afraid to challenge a flexible working request – or to propose an alternative arrangement. Take the time to consult with the employee or offer a trial period to get it right. Flexible arrangements which don't work eventually lead to bad feeling and can affect a whole team.

Ensure that work is fairly distributed – managers should try to ensure that work is distributed fairly and that a flexible worker's colleagues are not asked to perform their work (except where reasonably necessary). Flexible workers should understand that they are expected to manage their workload to avoid their colleagues having to cover for them unnecessarily. Employers should take action if they are clearly failing to do so. Monitor the impact of flexible working – it is important to monitor the performance of employees who work remotely, to avoid “dressing gown in front of the television” assumptions by their colleagues or managers. It is also worthwhile engaging with all staff about their attitudes to flexible working in the organisation, and about issues which do or may affect their own ability to work flexibly. Flexible working is here to stay and the organisations which actively embrace it as part of their culture will be a step ahead of the competition.

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