Top tips from an employment lawyer who happens to be a flexible worker too!
Sarah Wilder, a Partner at MPM Legal, speaks to sistr about flexible working rights, how to ask for them and, what to do if you aren’t allowed them.
The first thing I want to say is that although flexible working is not exclusively for parents, it is often parents (and particularly mothers, although I hope that is changing to include all parents) who want to work flexibly. I could write a whole separate article about how we should be making it more acceptable and accessible for men to work flexibly, but that’s not what I’m talking about today.
What I am talking about is how to approach the decision to work flexibly and how you can maximise your chances of doing this successfully.
Tip 1 – Have agency in the decision about who will (literally and figuratively) be left holding the baby.
One of the best tips I can give you is that if you want to become a parent, and you want to become a parent with your current partner, and they feel the same, then one of the things that you should be talking about waaaaaayyyyy before you actually have a child is how you are going to share responsibility for looking after that child when it arrives, and what sort of childcare you are going to put in place together with how you’re going to pay for that. So many fantastically intelligent and empowered woman don’t seem to consider that they need to discuss and agree with their partner how they would like to deal with the split between childcare and their career until it’s too late, and they are trapped in a particular scenario that doesn’t make them happy, often whilst paying for the childcare themselves without any financial help from their partner. This is rarely a recipe for happiness.
My husband and I had a number of conversations before we had kids about what we would do when we had them, and we agreed that we would split the responsibility for childcare down the middle. We also agreed that for us, the right childcare arrangement was a nursery setting rather than a Nanny (and not just for cost reasons). This has doubtless meant that we have both taken a hit on our careers, but for us, both taking a bit of a hit rather than one of us stepping away from our career was the right call – and honestly, whilst I have occasional pangs that the grass might be greener for some of my amazing friends who stuck with the City law firms or have taken big in-house jobs and whose careers are flying as a result, I know damn well that they look at the balance that I have between life and work and my proverbial grass looks pretty green from their perspective too.
However you choose to cut the childcare/working life cake, you will find no judgement here, but for goodness sake think about it, talk about it and agree it with your partner so it’s a team decision, rather than a series of assumptions and societally imposed defaults that leave you literally, and figuratively, holding the baby.
Tip 2: Plan your flexible working request like you would any other business plan/project/pitch
So, you’ve had the discussion, decided who is going to do what (or this isn’t anything to do with childcare or even caring responsibilities for an adult, you just want to work flexibly) – what next? Next, you need to think about how you maximise your chances of your request being granted.
You need to plan. What is your ideal working pattern? Are you still going to be able to deliver your job if you work that way? If not, what are your solutions for changing your role so that you can work flexibly? If you can’t have your ideal, what could you live with/make work? What are the absolute boundaries beyond which it’s not going to work for you? What’s the impact on your household finances of your proposed working pattern (because, by the way, at least where childcare is concerned, it shouldn’t just be your responsibility to pay for childcare, it’s a joint cost – see point 1 above)?
Be prepared to negotiate and to show some flexibility in order to find an arrangement that works for you and your employer – the best employers will be open-minded and work with their employees to find a workable solution if they can’t agree the request in its initial form and you need to be prepared to meet them in the middle, subject to the boundaries already referred to above.
When you are planning, bear in mind that employers can refuse a request for one of eight statutory reasons, which largely go to the impact that your request will have on the business, so you need to factor in your response to these potential reasons for refusal – attack is the best form of defence here. Here’s the list:
The burden of additional costs
An inability to reorganise work amongst existing staff
An inability to recruit additional staff
A detrimental impact on quality
A detrimental impact on performance
Detrimental effect on ability to meet customer demand
Insufficient work for the periods the employee proposes to work
Planned structural changes to the business
Really think through what your employer will be worried about and how you can reassure them. Be creative! When I made my first major flexible working request, I asked to work compressed hours, squashing my job into four days instead of five, with three days in the office and one at home. I knew that the nature of my job at the time meant that my employer was not going to get in another resource to work 20% of my job, so I agreed that I would deliver my whole job in four days and continue to be paid to deliver the job, rather than take a pay cut to do the same amount of work. It was bloody hard at times, but I never resented the hours I was working in the same way as I would have if I was doing it for 80% of my salary. I was able to show that the work would still get done, and in order to assuage any concerns my employer had that I wouldn’t deliver, we agreed a trial period (see below).
Tip 3: Back yourself
Most women I know need to get better at this. You shouldn’t feel that you need to apologise or make excuses for wanting to work flexibly. Instead, you should try to refocus that energy into why it’s such a great thing for you and for your employer – they will retain some top talent, who will be engaged and excited because she is able to look to her wellbeing and where relevant, have the time she wants with her family, as well as having a fulfilling role and career prospects. The loyalty that this engenders is off the charts – take it from one who knows!
In a similar vein, men, you should also back yourself to ask for and succeed in getting flexible working. I get that culturally, and societally, you might feel like an outlier for asking for something that not many men do in your company. But if you do it, and do it well, then you are going to be responsible for the cultural shift that needs to happen in this country to level the playing field from a gender perspective for the working generation now, and the ones to follow. If doing it to support your wife/partner/female co-workers isn’t enough, do it for your daughters, so that when they get to the workplace, it’s the norm for people to be able to fulfil the caring roles they want and need to fulfil, whilst bossing it at their career as well.
Tip 4: Don’t blindside your boss
This is a delicate one – if you work for a firm of dinosaurs who are going to question your commitment because you have the temerity to want to do something other than work 60 hours a week in the office, you might want to think quite hard about changing job when the opportunity arises rather than making a flexible working request(!).
However, assuming that your employer is on board with the benefits of flexibility and you have a good relationship with your line manager, it’s a good idea to chat through your proposal before you make a formal request, so that it doesn’t come as a huge surprise. I was lucky when I made my first request that I worked for an amazing woman who agreed my first pitch, made verbally over lunch whilst I was on maternity leave, so I didn’t have to move to my alternative options, but it was a real confidence boost to know that she was backing me when I made the formal request to HR (especially since I’m pretty sure I was the first person in that legal team to make a case for working compressed hours).
Tip 5: Don’t be afraid of a trial period
It’s actually a really good idea, when you’ve found an arrangement that works for employer and employee, to put a decent trial period in place – my first one was four months, for example, which ended up being extended because I managed to contract pneumonia whilst pregnant with my second son and had to have a chunk of time off work so we couldn’t really judge how the arrangement was working. After I came back from maternity leave and could show the arrangement was working well, it was signed off without any problems. The trial period gives an opportunity to iron out any kinks so that you are in the best possible position to succeed in the long term in delivering your job whilst working flexibly, because it is not only possible, but likely, that you might need to make some tweaks to really make it work.
In conclusion
The coronavirus pandemic has changed the workplace. There are many incredibly worrying statistics about the impact the pandemic has had on women’s careers, which whilst they make my blood boil, are outside of the scope of this blog, but there is no doubt that a lot of employers who would have shied away from allowing their employees to work flexibly have had their eyes opened to the benefits.
If you are not allowed to work flexibly, you may well be able to take legal action against your employer, but if possible, it’s far better to take control of your destiny, research, plan and ultimately, make them an offer that they simply can’t refuse… and if they still refuse, then maybe get in touch and take some advice from someone like me!
Sistr is on a mission to help all our sistrs in this COVID-19 world. As ever, reach out to us, for a chat, advice, in need of a mentor, we are here, as a community, to help.
