Stretching a point

The advent of flexible working arrangements has sparked fears of conflict between law firms and their employees.

Chris Baker looks at the pitfalls of rejecting the new legislation and how it might help practices

When new legislation for family-friendly working practice came into force last month, most legal experts agreed it was more or less toothless.

From 6 April this year, the Employment Act 2002 introduced measures to give parents with young or disabled children rights to ensure they that could balance childcare and work.

Parents with children under the age of six, or disabled children under 18, now have the legal right to ask for flexible working arrangements (FWAs).

And employers must seriously consider the request within time limits, and respond in writing.

For the first time, new fathers will have the right to two weeks' paternity leave at 100 a week.

The Equal Opportunities Commission (EOC), concerned that small businesses are not fully up to speed with the legislation, has produced a free guide for solicitors.

Small businesses will see solicitors as one of their most important ports of call as requests for flexible working come in, it says (see [2003] Gazette, 13 February, 4).

But employment law specialists say the new legislation will not make too much of a difference, at least not for access to FWAs.

It could, perversely, lead to an increase in claims for indirect sexual discrimination.

Julian Hemming, a partner at Bristol firm Osborne Clarke and chairman of the Employment Lawyers Association, says: 'My view is that this legislation offers fairly limited rights.

A campaigner for employment rights would probably call it "toothless".

But it will lead to an increase in claims.'

He also voiced a note of caution that the new law only contains the right for one FWA request per employee each year, and if the request is granted and that employee is unhappy with the result, the boss does not have to change back.

'It is only a right to request - it is not a right to flexible working,' says Makbool Javaid, an employment partner at City firm DLA and a member of the Law Society's employment law committee.

'There has been a lot of misunderstanding in the popular press.'

Nick Chronias, an employment associate at City firm Beachcroft Wansbroughs, brands the legislation 'the Emperor's new clothes', backing existing rights toothlessly.

People have always been able to ask for FWAs, he says.

Mr Chronias adds that the government has included a 'very long list' of reasons that employers can give for refusing a request.

'Most law firms could fit themselves within those reasons if they did not want to say "yes" to someone,' he adds.

Firms turning down applications for FWAs could use these reasons, such as whether different working hours would be detrimental to customers or affect continuity of service.

'It will not be difficult for most employers to come within the reasons that have been set up,' Mr Javaid says.

He says the legislation has been compromised to keep both the unions and the Confederation of British Industry happy.

And the sanctions - if a request is refused and a tribunal finds in the employee's favour - are not particularly punitive.

The maximum that can be paid out in compensation is eight weeks' pay - set at 260 a week.

'That's not a great sanction if you are a big employer or a City firm,' Mr Hemming says.

Mr Chronias adds: 'There may well be a number of employers who feel that's a fair price to pay for not having to accommodate flexible working requirements.'

The new legislation could lead to an increase in other cases, such as claims of direct or indirect sexual discrimination.

More women than men tend to have childcare responsibilities, and may be able to bring a claim separate from an FWA request, if such a request is refused.

There are no limits on compensation in cases of sex discrimination.

Julian Hoskins, a partner at west country firm Bevan Ashford, says: 'The real impact is going to be more people coming forward to make these requests.

And where an employer legitimately says "no", a person will be encouraged to bring an indirect sexual discrimination claim - particularly women returning after maternity leave.'

'Whatever evidence is generated by the request could be used in a sex discrimination claim,' Mr Javaid adds.

'That's where the issue for law firms will lie.'

Mr Chronias agrees that the legislation bolsters existing rights to part-time work, especially after maternity leave.

If a woman with a three-year-old is granted an FWA but a male colleague with a five-year-old sees his request refused, that could constitute gender bias, he says.

'An employer could fall down here and end up with a large bill, so it's really up to them to make sure they follow the framework set out in the legislation,' he says.

Plenty of businesses are getting in touch with law firms for help in drawing up flexible working policies, he adds.

But employers, including law firms, could and should make the most of the legislation by adopting and using it as a bonus for employees, according to Mr Chronias.

Mr Hemming adds: 'Employers will have to consider a request for flexible working under the legislation even if that request is not couched in the terms of the legislation.'

Most lawyers back the EOC's line that any change in favour of flexible working is change for the good, however much they may doubt the bite of the legislation.

EOC deputy chairwoman Jenny Watson says she understands that legal minds may have their doubts about the legislation's effectiveness, but it has to start somewhere.

'To have a framework where an employer knows it has to take requests seriously and think about them within time limits, and respond in writing, is a positive move,' she says.

'We will be watching it very closely.'

Mr Hemming says: 'What is good about this is that it does encourage employers to think creatively and be more open to the idea of flexible working.

The sanctions are not that onerous but the fact that the right is there is an important step forward.'

The law is still a traditional area but solicitors' firms, especially outside the City, need to be more family-friendly in their approach, he says.

'There's not an inexhaustible supply [of staff] in some areas of law and if you want to get a good lawyer and keep them then you need to think about flexible working.'

Mr Chronias says recruitment and retention issues will be more of an issue than the sanctions for failure to offer FWAs.

'The real question may be whether you could lose a good fee-earner.'

But not all lawyers seem to have grasped the family-friendly nettle.

A recent survey of 63 major firms by recruitment consultancy Graham Gill found that three-quarters of firms offered FWAs, but only 10% of men and 25% of women had taken advantage of them (see [2003] Gazette, 17 April, 3).

One reason given by Fiona Muxlow, chairwoman of the Association of Women Solicitors, was that firms may offer FWAs in such a way that they are viewed as a bar to future partnership.

'Employers perhaps see people who want to work flexibly as not showing the sort of commitment necessary for promotion of partnership,' Mr Javaid says.

'And employees hesitate in making the request because it may be seen as a lack of commitment.'

But he thinks law firms could use the new legislation for their benefit, perhaps cutting back in some areas by using part-time staff while retaining people they have invested training in.

'Firms should listen to the Association of Women Solicitors and provide opportunities for people who have commitments outside work,' he says.

'These people should be given an environment where they can keep working while meeting care commitments.'

A Department of Trade and Industry survey of 1,200 business and 2,000 employees earlier this month found FWAs are good for business.

More than 90% of bosses interviewed said people work better with a suitable work/life balance.

And the same amount said setting up FWAs involved no additional costs.

The government has said it will review the legislation, and its impact, in three years' time.

Ms Watson says the EOC will be following its progress carefully.

'One of the things we will be looking at is if [FWAs] could work for other people,' she says.

'There may be a possibility for it being extended to people who are carers for elderly parents.'

The need for flexible working has been noticed, and legislation is moving slowly to reflect this change in society's needs.

LINKS: www.eoc-law.org.uk/eoceng/ dynpages/family_friendly_hours/ index.asp Contains the EOC's guide to the new legislation for legal advisers

Chris Baker is a freelance journalist