Sarah Keeble argues that new legislation means law firms will have to let staff work part-time whether they like it or not. Sarah Keeble is an employment partner at Manches.
Following the announcement that Linklaters is to allow its partners flexible working hours, there has been much discussion in the profession about whether flexible working is feasible in a law firm.
This discussion ignores the fact that flexible and part-time arrangements have existed in many law firms at all levels for many years – although few firms have encouraged them.
Most firms also seem blissfully unaware that in the next 18 months they will be forced to allow part-time working – possibly at all levels of their businesses.
Many firms have resisted change in this area using the excuse that a law firm is not a normal business and the profession's requirements mean that flexible working is simply not feasible.
But times are changing. In its Fairness at Work white paper, the Government has declared its intention to encourage flexible working arrangements.
Furthermore, the European Part Time Working Directive, which has been welcomed by the UK Government, will force all employers (including law firms) to review their working practices.
The Government recognises that the vast majority of part-timers are women. Making it difficult for an employee to work part-time is therefore likely to have an adverse effect on women.
Fairness at Work states that the Government wants to encourage “family-friendly” policies. It declares that its priorities are to tackle excessively long working hours (which it has already sought to achieve through the implementation of the Working Time Directive) and to give parents greater flexibility to help them combine their work and home life. It has promised to implement the Part-Time Working Directive on time, by April 2000.
Apart from its wording and the objectives of the white paper, there is little guidance as to how the directive will be implemented in the UK, but its two aims give a clear signal:
first, to “eliminate obstacles” to part-time working and to assist employees to move from full-time to part-time working (and vice versa); and
secondly, to “eliminate discrimination” against part-time workers and improve the quality of part-time work.
The legislation implementing the first of these objectives is likely to make it difficult for employers to refuse a sensible request from an employee to move to part-time working, whatever their level.
As the law stands, employers cannot refuse such a request from a woman unless they have a good reason to do so. If they do unreasonably refuse, they may face a sex discrimination claim. But such a claim is not necessarily easy for the woman to bring, since she will have to prove that she has been indirectly discriminated against on the grounds of her sex.
Once the new legislation is in place, she should only have to prove that her employer breached its terms. If successful, this is likely to amount to a discrimination complaint and so there will be no cap on subsequent damages.
The second aim will mean that employers (again, including law firms) will no longer be permitted to deny benefits to part-time workers, if those benefits are granted to full-timers.
If a firm currently does not allow part-timers to join its pension scheme, or does not pay sickness benefit, then this situation must be reassessed. Once the directive is in force, this is likely to be unlawful (and in fact, even as the law currently stands, if the majority of its part-timers are female, a firm could face discrimination claims).
It will also become more difficult for firms to deny partnership to part-time fee earners merely on the grounds that they are part-time. This is surely just the type of discrimination that the directive is seeking to remove.
The directive does not just cover employees, but rather uses the term “workers”. Subsequently casuals, temps, contractors and salaried partners may also be covered. The only staff who are unlikely to be covered are consultants (and possibly equity partners).
In the light of this, law firms should now be looking at the jobs within their businesses, to see where part-time arrangements and/or job shares will work.
Job shares will rarely be feasible for a senior role or for fee earners, but they can work in many support functions. However, they do not necessarily work in the secretarial function because a busy fee earner, facing all the demands on a modern lawyer, often needs the support and continuity of one full-time secretary, rather than two secretaries trying to carry out a job share.
For fee earners and senior support staff, firms should review where part-time arrangements will work and what rules they want to lay down. Many jobs can be carried out on a four-day-week basis. However, if a fee earner asks to work two days each week, is that realistic, or should they be working five mornings, so that they are in the office every day and able to talk to clients?
A part-time fee earner will also have to be flexible enough to work more hours when necessary. For example, a litigator will not be able to ask the court to hold a trial on mornings only. Arrangements can be made for corporate lawyers to be given compensatory time off in lieu of extra hours spent on a major transaction.
On a practical note, it may also help to keep job titles broad, since it may then be easier to move secretaries and/or support staff around a firm. Their request to go part-time might not be feasible where they are based, but if they can be moved to a different department, a solution might be found.
There will be additional costs and administration involved in employing more part-timers. For example, if two employees are carrying out a job share, National Insurance costs will double and the firm will need to recruit (and manage) two staff, rather than one. However, firms should not live under the illusion that it is difficult to recruit part-time staff – it is not, because there are so many women keen to work part-time.
Law firms will have to learn that the advantages outweigh the disadvantages. The advantages in terms of morale and loyalty cannot be under-estimated. A sensible approach to the new laws will also make economic sense, since a firm that takes a practical view is less likely to face claims from disgruntled employees.
The best advice is quite simply that partners should take their heads out of the sand and address these issues now.