Flexible working: “The law needs to be reformed”

black woman working from home on the sofa, flexible working

Article provided by Homa Wilson is an employment law partner at London solicitors, Hodge Jones & Allen

There has been a lot of noise around the future of flexible working.

As we ease out of lockdown restrictions, many employers have set a strict binary: either return to the office full time or lose your job.

Organisations from Google to Goldman Sachs to the UK Government have been debating pay cuts or job losses for employees not returning to the office full time. Even when companies are less stringent, the apparent “dialogue” around returning to the office is really a three-line whip which capitalises on employees’ fears of being made unemployed. These approaches to flexible working not only raise ethical quandaries, but legal problems too.

The term ‘flexible working’ may have only entered our mainstream lexicon recently, but it isn’t a new idea. In 2019, around 12.4 per cent of the UK’s workforce were working from home, as shown by figures from the Office for National Statistics (ONS) – not an inconsiderable amount. In 2020, however, this figure rocketed to over 25% of the workforce, or 8.4 million people, almost doubling in a year.

Research shows that working from home, some, or all of the time, is not going anywhere soon. A recent YouGov survey found that 91 per cent of employees would like to carry on working from home at least some of the time once the pandemic ends. Similarly, a survey by Working Families found only one per cent of respondents saying they did not want any flexibility at all in the future.

But there is a disjunct between employees and employers.

For all of its horrors, the pandemic gave us a chance to rethink our society, from education to healthcare. Work is no different. Our recent experiment in remote working has been an opportunity to reimagine our 9 to 5s, the commute, our city-centrism, and our office interactions.

It has also allowed employees to strike a better work-life balance – spending greater time with family, taking up new hobbies, and pursuing other passions.

Not only are employees happier when given these options, but also more productive. Flexible working arrangements are in the employee’s interest as well as the employer’s. The pre-pandemic assumption that working outside of the office would detrimentally impact our output is untrue.

Another assumption that has been disproved over the last 18 months is that the workplace cannot make necessary accommodations for those that need it the most.

Pre-pandemic, employees asking for flexible working arrangements frequently found that employers would refuse their request, using the catch-all justification that flexibility does not suit a company’s business needs.

Currently, in the case of disabled employees, employers are under a legal obligation to make reasonable adjustments to accommodate their particular needs. However, in my professional experience, disabled employees have found themselves driven out of the workplace as employers refuse to countenance any arrangements, including working from home.

If employers cling to these old beliefs, such as insisting on presenteeism, it will have a disproportionately adverse effect on disabled workers and women. Those with additional requirements, caring responsibilities, and children will be the most affected, particularly as suitable childcare provisions continue to be disrupted post-pandemic.

With the proven effectiveness of remote working, that has been our reality for the past year, employers now face an uphill struggle to prove that working from home is unfeasible or impractical. If the delivery of services, client relationships, or profit margins have not been negatively impacted, it is almost impossible to refuse requests for flexible working. By failing to embrace these changes to the workplace, employers risk creating a culture of resentment and alienation.

The resignations we are seeing from stubborn companies illustrate the benefits of a flexible approach from a competition standpoint. But welcoming change is not only about attracting or keeping talent. Companies also risk facing legal claims of discrimination for refusing adjustment requests which the past few months have shown are completely workable.

The Covid-19 lockdowns accelerated a shift in working that was already taking place. It’s important that we harness this momentum to see tangible positive changes, including more men working flexibly and taking on caring responsibilities too.

Employers not only need to treat each request with sensitivity but should also outperform their basic obligations: by ensuring a strong flexible working policy that goes beyond mere statutory minimum. They should also have policies that encourage flexible working. If the employer does not grant a flexible working request, they should have the burden of proving the business reason behind their failure to accommodate.

Whilst the onus should not be on employees, greater education on flexible working rights would also encourage more requests, leading to a happier, healthier workforce, and help minimise refusals. The greater the uptake, the greater normalcy we will see around flexible working.

This wider, cultural change will help push through changes to the law. As the law currently stands, employees must have been employed for 26 weeks at the time they make their request for flexible working – and can only make one request in a 12-month period. They do not as such have the right to work flexibly, but merely a right to request to work flexibly.

As long as the employer deals with the request in a timely manner, they can reject the request for one of eight reasons, including that it will have a detrimental impact on performance and the burden of additional costs. The current law also states that the employer does not need to prove this decline in performance or increase in costs.

In my view, the law needs to be reformed to encourage flexible working. This would mean extending flexible arrangements, allowing staff to make multiple requests as and when required, and only accepting refusals of requests with firm evidence. We must ensure companies can’t wriggle out of employee welfare. Moving forward, flexible working needs enshrining and protecting in both law and practice.

The future of work rests with how we continue to empower both employers and employees – in our societal attitudes and legal protection. We cannot let this opportunity to reimagine our workplace, free from unequitable accessibility and presenteeism, for all genders, ages, and (dis)abilities.

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