Depending on what you read and who you believe, today’s opening-up of eligibility to request flexible working to all employees with six months’ service or more will be:
(i) the unleashing of an unstoppable tide of cost, inconvenience and Tribunal claims; or
(ii) no big deal.
Perhaps by the time you read this, there will already be a queue of flexible working applicants camped outside your door, some for days, desperate to take advantage of the Acas guidance to employers to address such requests in the order in which they are received. Equally, perhaps there won’t.
Squire Patton Boggs has in the last month conducted a survey of over 100 clients and contacts across a wide variety of business sizes and industry sectors, and together employing over one million staff. We thought you might be interested in the responses as maybe the most reliable indicator of what we can expect from the new regime over the coming weeks and months. If you would like the full results (the survey respondents anonymised, obviously), then please contact me. In the meantime, as the World Cup commentators did not say about England’s performance, here are some highlights:
1 55% of survey respondents currently have 5% or less of their workforce operating on a flexible basis. Nearly 90% have less than 20% working on such an arrangement.
2 Nearly 60% of respondents believe that requests for flexible working will increase by 5% or less, while over 80% think that it will be less than 10%. Only a very pessimistic 5% think that requests will increase by more than 20%.
3 84% of respondents consider that the new regime will or may give rise to tensions between staff who do work flexibly and those who do not, even though at the same time scarcely a third of them believe that the “non-flexible” employees would be required to shoulder any additional workload as a result. This squares with our own experience of the old regime – that the resentment of colleagues is often based not on any actual additional burden, but on the faint but unmistakable feeling that those on flexible arrangements are enjoying themselves more. “It’s not fair” is of course not one of the permissible reasons for rejecting a flexible working application. However, only 36% of respondents to the survey thought that an increased level of flexible working would probably or certainly lead them to hire any additional staff, so quite where the remaining work goes is unclear. Maybe that 84% is an under-estimate!
4 There was a narrow 55/45% majority for the view that the new flexible regime will have an adverse impact on day-to-day running of respondents’ businesses. If you compare this with the sub-20% who say that they had operational difficulties as a result of the old flexible working regime, it is clear that there is a considerable degree of apprehension among employers about the changes. It is possible to conclude, given the relatively small increases anticipated (see 2 above), that most employers feel “flexed-out” already and that even a small further increase in numbers will cause them significant difficulties in implementation.
5 Despite the Acas guidance referred to above about “first come, first served”, some 70% of responding employers would give priority to flexible working requests motivated by child or other caring responsibilities, compared to 17% referring to arrangements sought to permit religious observances and a deeply unsympathetic 5% for lifestyle and sporting reasons combined.
6 Last, nearly 60% of respondents believe that the wider eligibility to request flexible working will lead to an increase in the number of grievances and Tribunal claims. We think that is probably right – statistically, an increased number of requests must lead to an increased number of rejections. Coupled with employer fear of the “it’s not fair” factor and perhaps some initial personal prejudices around the sort of reasons which do and do not “justify” flexible working, we think that some of the early employer decisions may be more than somewhat tenuous, with matters settling down again after twelve months or so.
