Yvonne Sonsino and Jane Wheeler explain how managers can draw up arrangements that benefit both the business and the employee

Line managers either love or hate flexible working. Some believe that allowing employees to work flexibly gives them access to the best talent – those who feel highly engaged, and go the extra mile because of it. Others look around the canteen on Friday lunchtime, see a few gaps, and say ‘my workers are skiving at home today!’ So how do you achieve a fair and consistent approach to flexible work, where both employers and employees win?

It’s worth looking at why flexible working is growing in popularity. Changing customer needs and the emergence of new technology could spell the end of some products and even whole industries that seem indispensable today. In what the World Economic Forum calls the ‘fourth industrial revolution’, organisations have to become more agile and flexible to react quickly to changing markets. Some jobs will disappear – or, rather, become automated, digitised or robotised. Others will demand more flexibility regarding how, when and by whom they are done.  

The ageing population creates another set of challenges. By 2050, almost a quarter of the world’s population will be aged over 60 – nearly treble the mid-20th century figure. People in developed economies are generally living longer, increasing the complexity of retirement and family care issues. At times, all of us need flexibility to balance our lives and our work.

Where flexible policies do exist they are typically limited to where and when people can work, and this framework is too limited to define the full scope of future flexible working. Only a strategic approach to workplace flexibility that is based on a clear and structured methodology will deliver practical and repeatable results. The outcome will be a framework for controlled flexibility that enhances the employee value proposition and minimises the risk that flexibility dissolves into chaos.

The approach needs to balance risk and value, too, because the legal implications of getting flexibility wrong are expensive. The UK law sets out the requirements for employers, but there are ambiguities and some areas are open for interpretation.  

What you must do

  • All employees with 26 weeks’ service have the right to request flexible working – in other words, there is no entitlement to work flexibly.

  • The right to request flexible working used to be available only to carers and people with young children. This was extended in 2014 to cover all employees who wanted to work flexibly for any reason.

  • The legal definition of flexibility covers changes in hours, times and place of work.

Employers often have to grapple with competing priorities if they face a number of flexible working requests. They don’t have to grant them all: organisations can only be flexible to a certain degree.

Acas guidance suggests that employers should operate on a ‘first come, first served’ basis. In practice, companies will be mindful of the reasons for requests and any potential legal claims that might arise if they decline a request. For example, flexible working might be a reasonable adjustment for an employee with a disability. But it is not clear how employers reach the point of enough: what do they say when the first come, first served employees are happy, but the requests still keep coming in?

In practice, organisations must scrutinise requests and provide clear business reasons if they wish to decline a request. Indirect discrimination claims can arise where, for example, a female employee argues that the requirement to work full-time impacts women (and them personally) disproportionately because women bear the brunt of childcare issues. More recent cases have challenged this assumption of disproportionate impact on women as more men take on childcare responsibilities. Discrimination claims could also be available to men if a request to work flexibly by a female employee would be treated more seriously than a request from a male employee.

Managers are central to getting this process right. They are increasingly being given responsibility for framing and agreeing to the basis on which individuals contract with the organisation – both formally and informally, including the way they work. Managers need the right frameworks, tools and awareness to make mutually beneficial and risk-free decisions around flexible working patterns. They need to be enabled to apply fair and consistent decisions.

To succeed, the best flexible working agreements require a mutual and unambiguous understanding of five key dimensions:

When the work can be performed: the preferred working hours, as well as the degree of individual discretion in determining them, and an understanding of how this will be managed with co-workers.

What the job and work entails: examine the required job content and any flexibility to share or exchange responsibilities with others.

Where the work is done: the preferred work location/s and the ability to vary this to mutual benefit of the employer and employee, with supporting IT infrastructure.

How the work is delivered: in particular, the need or ability to scale up or down intensity when needed.

Who actually delivers the work: the flexibility to allocate responsibility to a distributed set of workers beyond employees to freelancers or an outsourced model, if appropriate.

As many organisations have learned, total flexibility can be a recipe for chaos without careful attention to the structure of jobs and the interaction between them. A successful framework needs to balance the needs, wants and preferences of individuals – along with the imperatives of the business.

Yvonne Sonsino is innovation leader at Mercer Europe and Pacific, and co-chair of the DWP Fuller Working Lives business strategy group. Jane Wheeler is partner at Hine Legal, a specialist employment law firm