Taking the pain out of flexible work arrangements

Embracing different types of working arrangements can deliver benefits to the firm, its clients and employees, but the process must be carefully managed, writes Kriss Will.

Workplaces, including law firms, are increasingly finding ways to change standard working arrangements to cater for the needs of their employee, business and client needs. This includes suggestions to change standard hours and locations where work is conducted. It is important to think of flexible work arrangements as a broad canvas of possibilities; the issue is not confined to part-time roles or working from home one day a week. Employees have a range of reasons for requesting flexibility and sensible adaptability can ensure the retention of talent and the continued provision of good service to clients. Obviously, people with carer responsibilities are going to be more likely to request flexibility, but it would be a mistake to confine your thinking to mothers returning to work after maternity leave.

It is my experience that employees with tailored flexible working arrangements are less likely to leave an employer because they are happy and settled in their roles, and it is often quite difficult to replicate such arrangements. As such, flexible working arrangements can rightly be considered part of any engagement and retention strategy.

Legal entitlements
Under the Fair Work Act, certain groups of employees are automatically entitled to request a flexible working arrangement. I take the view that it is best to open this opportunity to all staff and that consideration is given to all proposals. A request can be as simple as asking for a working arrangement whereby the staff member takes a 45-minute lunch and leaves 15 minutes earlier two days a week to accommodate a personal commitment (e.g. playing a sport). Or they could request working fewer hours, including doing some of these hours from home.

Employers need to consider such requests promptly and appropriately. It is unlikely that every request will be able to be accommodated, but it is important to consider the request and not just instantly dismiss it. For smaller firms, the ability to accommodate requests may be more onerous as there is not a team of staff to call on to provide additional assistance. The firm also needs to consider the consequences of losing a trained employee. Accommodating different working hours is usually better than losing a talented employee.

What are reasonable business grounds for refusing a request?
It is worth remembering that employees are entitled to request a flexible work arrangement; it is not an entitlement to have a flexible work arrangement. An employer can refuse a request for flexible work arrangements on reasonable business grounds. Those grounds include but are not limited to:
• the new working arrangements requested by the employee would be too costly for the employer
• there is no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested by the employee
• it would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the new working arrangements requested by the employee
• the new working arrangements requested by the employee would be likely to result in significant loss of efficiency or productivity
• the new working arrangements requested by the employee would be likely to have a significant negative impact on customer service.

The National Employment Standards do not require the employer to choose between granting an employee’s request in full or refusing the request. Employers and employees are encouraged to discuss their working arrangements with a view to reaching an agreement that caters for both their needs. Such discussions can lead to new ideas and changes to requests and an employer should be open to this.

Making a request
I suggest that employees should be encouraged to think through the business impacts of any request and to suggest how this could be accommodated. Making this part of the policy is a good way to ensure there is a focus on both the individual and business needs. Equally, employers should think ‘how can I make this work’, rather than automatically thinking ‘this is too hard’ or ‘how can I rule this out’.
The Victorian Women Lawyers publication, Do You Manage? A Guide to Managing Lawyers With Flexible Work Arrangements, has good templates and practical tools. In particular, the list of questions a firm should consider for lawyers working flexibly is comprehensive and serves as a great discussion starter to ensure all the main issues are addressed. It was prepared after discussions with a number of law firms and lawyers and provides very useful information.

Clarity the key
Once a request to change working hours is agreed, it is important to confirm this in writing so that there is clarity about the change and the impacts. For example, a reduction to four working days will mean a commensurate reduction in salary and leave accruals.
Sometimes it makes sense to have an initial trial period for a change in a working arrangement. If you are going to include a trial period, it is essential that there is clarity about what happens if the trial is not as successful as the employee and/or the employer hoped. This is a difficult area and the ‘what ifs’ are best considered in the initial discussions so there is a clear understanding about what will happen if either party believes the arrangement is not meeting their needs.

To ensure such assessments are reasonable, it is very important to state how an assessment of the success of the trial will be undertaken and, if the trial is not successful, what the next steps are. For example, it might be that from the beginning there is agreement to work three days in the office and one day at home and, if this does not work out, that the day at home can revert to a day working in the office.

Communicate clearly
Overall, clear communication about expectations of the employee and the manager will greatly assist in making different work arrangements successful. A lack of clarity can lead to misunderstandings that have an impact on both the employee and the manager/employer. Simple upfront conversations really make a difference.

It is also important to discuss any changes to supervision and/or work allocation. I find people sometimes make the assumption that a part-time or home-based worker does not have the capacity to work on large, demanding matters. Sometimes people are able to make arrangements to change their work schedules or work location to accommodate different work demands and it is important to ask rather than assume. There may also be some matters where particular days of availability are required (e.g. to attend a weekly client meeting). Discuss these requirements and see what can be done to reasonably accommodate the client needs and the employee’s participation.

Managing the start of changed work arrangements
It is important to communicate the change to others in the team or firm so that they know what has been agreed and how the impacts on the firm and other staff are going to be managed. This communication will also help avoid confusion and possible tension in the workplace. For example, colleagues may think an employee is ‘not pulling his weight’ because he leaves early when, in reality, he is making up the time by starting early. They may also think that a CFO who leaves at 3.30pm is not available after this time, when the arrangement is that she is still checking emails and available to take urgent calls until 5.30pm.

Being prepared for the commencement of the new arrangements also shows that the firm/team/manager is not only organised, but is also supportive. Arriving back at work after a period of parental leave and finding neither a desk set up nor any work to do makes for quite a difficult start for the returning employee.

Make the most of the changes
Having someone work less than full time or not fulltime in your business can also drive valuable changes in work practices. Ask for suggestions about how things can be done differently. Encourage more effective use of technology. Pilot new ways of working to see what can be learnt. Embracing the change can have positive flow-on effects for the team and the organisation.

Kriss Will is a law firm management consultant and the founder of Kriss Will Consulting. She can be contacted at kriss@kwillconsult.com.au.

More information
• You can access more information about managing flexible work arrangement requests on the Fair Work website by clicking here.

• Do You Manage? A Guide to Managing Lawyers With Flexible Work Arrangements (click here).

• If you are interested in more information about working from home/teleworking, click here for in-depth guidance and many template documents, including a Telework Kit.