“Well, what’s the point of that? It’s completely toothless!” exclaimed my colleague, as I was outlining the new “flexible working” regime due to come into force in a few weeks’ time.
It was 2003, and I was a one-year qualified solicitor with a passion for detail and a way with words (well, legal ones at least). It was my job to turn the new law into a plain English policy that our clients could use.
When lawyers refer to something as “toothless”, it’s a legal provision which, if breached, has little or no consequence for the person who has acted unlawfully. My colleague was right. The new legislation wasn’t – as it had been portrayed by sensationalist media outlets – a right for parents and carers of children or dependent adults to demand whatever working arrangements they pleased from their employers.
No, it was (and still is) a right to make a formal request for a permanent variation in working arrangements, and have that request considered reasonably. In the beginning, it was purely for parents and carers, but this restriction was removed in 2014.
So, there we had it. An entitlement to ask, and an obligation to think hard about the request. Big deal. There were wide ranging permitted reasons for an employer to legitimately turn down a request. The only legal recourse was if the employer failed to act reasonably and/or follow the correct procedure and the compensation for this was limited to a maximum of 8 weeks’ pay.
I harrumphed about the “flexible working” label the new legislation had been given. “It’s a right to ask for a permanent change, and you can only make one request every 12 months…” I muttered as I drafted the policy “…What’s flexible about that???”.
Once the law was actually in force, the queries started coming in:
Client: He wants to do …[reasonable work pattern]
Me: Is it workable and could you accommodate it?
Client: Yes, it would actually help us out a bit with cover in that departrment
Me: Well, use the trial period to make sure it definitely works, make sure you document everything carefully and then you’re done.
Client: Wait though… We don’t want to set a precedent
Me: What kind of “precedent”?
Client: You know, of flexible working. We don’t want everyone coming and going as they please….We just don’t want to open the floodgates.
Me: *slowly and repeatedly banging head on desk* Legally, the policy clearly states that you will deal with requests on a case by case basis. *bang* If you turn him down, it needs to be for one of the prescribed reasons. *bang* He has very little in the way of recourse *bang*. Practically, you’ve told me this would actually help your business *bang*. If you turn him down, there’s a chance he will leave to find the flexibility he needs elsewhere *bang*. Of course, it is your decision, but I would suggest that the practical benefits of accepting this request would outweigh the risks.
I had many conversations like that in those early days. So did my colleagues. Employment lawyers the length and breadth of the country would have had similar conversations with their clients. Legally, the new regime was virtually toothless, but it placed the concept of work flexibility on the agenda for employers who would never have previously considered it.
And that is how an apparently “toothless” piece of legislation plays its part in the big picture. Employment legislation of itself will rarely deal completely with a situation it is designed to govern.
But legislation starts conversations, and it triggers action. In the case of flexible working, it got people thinking more about what might work, how things could be done differently – and better.
There’s still a long way to go, even 14 years on from the introduction of the legislation, which is why initiatives like the Big Conversation can give a turbo boost to the cause. The sum of the collective influence is so much greater than all of the individual parts, so please join in with all your ideas and who knows what we might achieve!
Karen Teago (@teago_emplaw) is a non-practising solicitor and Head of Consultancy at Cloud9 People (@cloud9people). Image by Simon Heath (@simonheath1).