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The demand for flexible working is on the rise and it is increasingly clear that employers in the UK will need to respond to this challenge in order to attract and retain staff.  A recent Smarter Working Hub survey revealed that 47% of employees do not have flexible working encouraged at their workplace, yet 67% of employees wish they were offered this opportunity. 

Perhaps somewhat surprisingly, the same survey found that given the choice, 30% of people would opt for employment flexibility over a pay rise.   Separate research carried out by RSM published in September indicated that almost two-thirds of middle market businesses in Scotland are considering introducing flexible working.

The legal regime which has been in place since 2014 allows all employees with 26 weeks or more continuous service to make an application, at least once a year, to work flexibly. The rules provide a reasonably clear and indeed flexible process for handling applications, with now well established and fixed justifications an employer may rely upon if it does not wish to accept a particular application.  While there remains scope for technical legal challenges to the process, the bigger risk remains potential claims for indirect sex discrimination or potentially disability discrimination if applications are not accommodated. It is important to remember that flexible working can mean more than part time hours e.g. job share, working from home, staggered hours, compressed hours and flexitime featuring core hours.

Advantages for the employer

Perhaps the most obvious reason an employer would be inclined to allow or promote employees scope for a more flexible work life, is improved employee engagement.  The Smarter Working Hub survey announced that 58% of people believe that working away from the office would help increase their motivation, and 53% people felt they would be more productive if they could work outside the office.  Furthermore, if employees feel they are valued and their requests are appreciated, it may reduce absenteeism and poor timekeeping.  Moreover giving employees a greater sense of responsibility over their own workload may serve to reward the trusting employer in the long term.  Smart Working found that 45% of people surveyed spend over an hour commuting each day, and 56% of commuters feel stressed or flustered at least once a month.  Flexible working may allow employees to accomplish more, avoid an undesirable commute and enjoy their work, for example choosing hours based on whether they fall into the classic ‘morning person’ or ‘night owl’ camp.  A reduced turnover of valued members of staff may also be a consequence, with the Smart Working survey indicating that 70% of workers feel that offering flexible working makes a job more attractive.  Consequently there may be an increased ability to recruit outstanding staff, who value flexible working, and the fact an employer offers this may be what attracts and distinguishes it from the competition. The concept of “agile” working has also allowed many employers to reduce real estate costs on the basis that they require to accommodate fewer workers on any given day.

Disadvantages for employers

Of course there are inevitable challenges which the varied ways of working may bring. For example in team orientated departments, teams still require to come together to collaborate, and if employees are working flexible hours coordinating a suitable time may prove difficult.  Furthermore it may complicate client handovers with employees not physically coming into contact with one another and missing that valuable opportunity to speak freely, instead having to converse via email or telephone.  Jobs with customer facing responsibilities will also likely struggle to offer flexible working, as the very nature of the employment requires office presence and office based client interaction.  In some industries clients will still be expecting a Monday to Friday 9-5 service.  Employees may feel there is unfairness where only certain individuals are offered the chance to work remotely.  Unfortunately there is always the risk that employees may take advantage of the flexible system, opting to work from home half-heartedly.  Managers may also struggle with such arrangements, which may involve managing remote employees in several different locations and which requires a large degree of trust.  In addition, issues around confidentiality and data security can clearly arise in relation to a remote and disparate work force.

Issues moving forward

Determining whether or not to allow flexible working requests requires an employer to fully explore all potential business benefits and consequences as well as anticipating the potential legal challenges, if it is to be a positive step forward for the business as a whole.  If employers do decide to offer flexibility, they would be well advised to rethink the firm’s management practices in order to mitigate any risks.  This could be done for example, by creating peer-to-peer networking opportunities to ensure employees feel part of the team and most importantly, feel valued. This can involve the use of less traditional modes of technology such as WhatsApp, and more generally aid in improving communication within and between teams and departments.    In implementing flexible and agile arrangements the balance to be struck will always be between promoting greater employee engagement and business efficiency whilst retaining adequate management oversight and control.

If you have any queries regarding the issues discussed above, please contact a member of the Stronachs Employment Team.

Morven White, Trainee Solicitor

Chambers Leading Firm 2019

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