Is Flexible Working, Working? Survey Results & Update

The Employment Team at the leading Colchester law firm Thompson Smith and Puxon advise many local and regional employers, most of whom have plenty of experience in managing staff on flexible work arrangements, especially since COVID.

It recently conducted a survey among its clients to test the hypothesis that the benefit to employers in providing flexible working was around staff retention rather than productivity.  It was also hypothesised that working-from-home arrangements were not highly valued by staff as a discretionary arrangement, but were instead considered to be more akin to a right. 

In UK employment law an employee only has the right to request a flexible working arrangement; there is no right for that request to be granted but the law is expected to change next year so that:

• An employee will be entitled to make two requests in a 12 month period in contrast to the current limit of one
• An employer will have to make a decision on the request within two months, rather than three
• An employee will not have to explain what effect they think the change would have on the employer and how it might be dealt with, as they do now
• An employer will not be able to refuse a request until there has been consultation with the employee.

For the time being employees still need 26 weeks’ continuous employment before acquiring the right to request flexible working.  The request must be in writing and only specific reasons can be used to justify turning it down.

The survey gathered responses from employers in a wide variety of sectors that included professional services, technology and financial services in each case employing up to 500 individuals.

All those surveyed had some staff on some sort of flexible working pattern for staff. Half reported that over 80% had flexible arrangements.  The majority of respondents reported that the number of staff working remotely had increased since COVID, although 38% reported that there had been no change.

The survey identified many more benefits for employers than initially hypothesised, including greater motivation among staff, the need for less office space and more opportunity to recruit better calibre staff by offering flexible arrangements.  Only a few respondents identified any negative side-effects those being the challenge to good internal communications and anecdotal incidents of reduced output.  Few respondents were able to refer to any empirical data.  All employers seemed to be alive to the risks that come with managing a more dispersed team.

The survey suggested that flexible working had little effect on the amount of sick leave staff took.

On the whole, employers reported that flexibility improved staff wellbeing and happiness, which may point to staff placing a higher value on the ability to work flexibly than initially hypothesised.

However, many also reported that finding good quality candidates remains a constant challenge for businesses, exacerbated by the backdrop of high wage expectations among candidates. It will be interesting to see whether employers’ views of flexible working remain as positive in a time when the job market is less employee-friendly, and when perhaps the consequences of not yielding to specific individuals presents less of a concern.

At the moment, while an employee can complain to a Tribunal about an employer’s process or decision-making (usually in support of an allegation of sex discrimination on the basis that women are still more likely to bear childcare responsibilities and require certain working patterns as a result), the greatest risk for an employer who cannot reach an agreement with its staff about working arrangements is having to manage disgruntled individuals and / or having to replace staff who find flexible work elsewhere.

As well as the discrimination risk identified above, another concern is the risk that over time gender pay gaps increase due to the proportion of women relying on flexible arrangements and the risk of over-promoting and rewarding those who are more visible ie not working from home; a group that may contain proportionately more men.

Stark pay discrepancies in large organisations continue to hit headlines and although relatively uncommon in smaller, private businesses, recently, more TSP clients have had to address allegations of breaches of Equal Pay legislation than in previous years.  These allegations are always complex and much better avoided, as is the case for all employment disputes.

For any assistance with a matter relating to working conditions, disputes between employer and employee or for any strategic HR advice, do not hesitate to contact Jolyon Berry or Grace Smyth of Thompson Smith and Puxon.

Call our Employment Law Team on 01206 574431 or email info@tsplegal.co.uk

About the Authors

Jolyon Berry is a Chambers 500 ‘Leading Individual’.  He heads the employment team at Thompson Smith and Puxon, a Tier 1 employment team in which Grace Smyth is a full time member.  Jolyon has particular experience in finding commercial solutions to complex employment issues, and helping clients avoid them in the first place.  Grace has quickly gained a reputation for helping clients with disability discrimination claims in the Employment Tribunal; both employer and employee alike.  Both would be delighted to hear from you if you needed any assistance.