A projects lawyer can’t possibly work 4 days a week….or can they?

A senior projects lawyer working in a large City firm submitted a flexible working application asking to work 4 days a week (although she was open to other forms of flexibility) but had her request turned down for a variety of reasons looked at in more detail later. She sought legal advice and was told that she had a potential claim in the Employment Tribunal against the firm under the Sex Discrimination Act 1975. Her legal team asked me to determine whether or not her role could in fact be performed flexibly…

The lawyer brought a claim of indirect sex discrimination against her employer under the Sex Discrimination Act 1975. (In very broad terms under this Act, an employer may be indirectly discriminating against an employee if they require her to work full-time and cannot objectively justify their requirement. For more details on this law, I am preparing a separate post which will go under the "Legislation" category). Her claim was that she could, in fact, perform her role flexibly and therefore her firm were unjustified in insisting that she had to work full-time.

I was asked to determine whether or not there was any evidence which could support her contention that her job could, in fact, be performed flexibly. This would serve to provide a level of objectivity to the issue; her firm could say that they were being “objective” in their assessment of the viability of her application, but without looking at other lawyers in different firms performing the role flexibly or otherwise, could they claim they were being truly “objective”?

I researched the market and identified those lawyers of the same level of qualification, same client base, same team structure, same support networks and same individual skills to determine whether or not there were other lawyers performing her role on a flexible working arrangement. I found that there were, although only a few.

Those that were working flexibly did so on a fluid basis ie they didn’t work a set pattern of 4 days a week every week; they took each week on a week-by-week basis and worked in a pattern that suited the work requirements of that week. Sometimes this meant they worked full-time, sometimes 3 days a week, sometimes flexi time etc. It worked well as long as the lawyer was prepared to be flexible.

As part of their defence, her employer argued several points in justification of their refusal to grant her request to work flexibly:

1. "The nature of the work is such that it cannot be performed flexibly…".

Virtually every opponent to flexible working cites this reason as justification to refuse an application.  It begs the question: "what precisely do you mean by "the nature of the work"?". Then sit back and listen attentively. It is often scaringly unilluminating.

Essentially, what the firm were trying to argue in this case is that the "nature of the work" involved relentless, immovable deadlines, in different time zones, and often requested at the drop of a hat.

Although this was true, it was not insurmountable if the applicant worked in a very flexible manner as the other projects lawyers I had interviewed were doing.

2. "The clients wouldn’t like it"..

All of them? 2 of them? A particular client?

Wouldn’t like what?

We had to ask the firm to elaborate on this statement in order to understand whether there were particular clients whose reasons for not supporting the idea of a lawyer working flexibly were valid or not. It transpired that the clients hadn’t actually been asked; it was an assumption made by the partners that their clients wouldn’t be happy to be advised by a part-time lawyer.

3. “The applicant lawyer would not be able to mentor and supervise the junior members of her team”:

What level of supervision was required? How often? How long would this supervision take each day/week? Did it need to take place face –to –face or could it be done virtually? Was there another senior lawyer who could provide this on the day that the applicant wasn’t in the office?

I concluded that she could continue to mentor and supervise her team:

· they often worked unsupervised for large amounts of time in any event

· there were a number of other senior lawyers who could be called upon to supervise

· many of the supervisory/mentoring issues could be dealt with virtually (by email, over the phone, web conferencing etc)

4. “If we allowed the applicant to work flexibly, then everyone else would want to work flexibly too.”

This is the old “floodgates” argument – ie “it will open the floodgates”. The firm needed to understand that each application has to be considered individually; there will be some arrangements which will be viable and some which won’t.

The fact is that not everyone wants to work flexibly in any event or can’t due to money issues.

This, in itself, is not a justifiable reason to reject an application.

I submitted the expert report to the applicant’s lawyers and, after several weeks of settlement negotiations, the case finally settled the night before the Tribunal hearing.

Although the partners involved in the original decision still seemed to find it hard to accept that her role could be performed flexibly, their arguments against it were not well supported by the evidence and it became clear that it would have been difficult for them to justify their stance in front of a Tribunal.

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