Why we need a new debate on flexibility

I’ve previously written about how, whatever comes from the pandemic, we will still need to physically come together at work. It is a myth that this is the end of the office and those that follow that line will, in my opinion, soon come to regret it. The other oft heralded statement at the moment is that this is a new dawn for flexibility at work. And whilst I hope it is, it means honestly addressing the inflexible flexibility that has been our model to date.

Our existing model of flexible working is no longer fit for purpose. In many ways, it introduces into work further structured inflexibility that, I’d go as far to say, could be one of the driving factors behind poor productivity. In embracing this, “new dawn” we need to be honest and open in the discussion and lose the emotion that is often raised in critiquing these existing structures.

I wouldn’t mind betting that in most organisations, if you ran the analysis of part time workers, the majority would not be at work on a Friday. As a long time commuter, I’d also add that the volume of (pre-pandemic) workers that “worked from home” also increased on a Friday. Not only is this statistically improbably, it is also unproductive, economically damaging and socially and organisationally inequitable. It isn’t flexibility in any true shape or form.

There is a decent argument to be had for a four day working week. That’s a good way of structuring and organising flexibility within both organisations and nations, but it is planned, thought through and evenly applied to all. But the reality is that the more likely model, at least in the UK, is going to be driven by reduced capacity in buildings through social distancing as well as the social appetite to maintain some of the practices that have been learnt over the last four months.

If we are truly to have a brave conversation about flexibility at work, that probably means throwing out the existing legislation that has led to our weirdly inflexible current situation. It means looking at the working week being seven days rather than five for more than just frontline and operational workers, it means looking at annualised hours, minimum hours contracts, it means dusting off the actually quite brilliant (but much maligned) Taylor report and starting to have a more progressive conversation about solutions that work for both organisations and individuals.

By definition, the presenteeism culture that has pervaded in many workplaces will be rightly challenged, but in using the workspaces for the work that really needs us to come together, so will the inflexible contractual arrangements that so many organisations have introduced in order to try and do the right thing by their workforces. We need to lose our previous grounding in legislative rights and protection and imagine a new world, with new normals and new possibilities.

Simply put, our model of flexible working is neither flexible, nor is it working. It is time for something much, much better.

If not now, then when?

People will have a range of views on the HR profession, I’m ok with that. It may not surprise you to know that I don’t come to work to either fulfil or disprove a myriad of perceptions of my worth or usefulness.  It may surprise people to know that the reason I do come to work is to steer the organisation that employs me at the time to do the right thing for the people it employs.

Obviously if you take this to the macro level, profitable organisations can invest back in the workforce, successful organisations ensure they have capital investment, commercial organisations ensure they can see and instigate the opportunities that lead to success and profitability – and so the cycle continues.

But that’s not the reason I get out of bed in the morning, the reason I do is to try to create the place to work that my colleagues want to be in. Even if that will inevitably involve some bitching and moaning along the way – you can’t please all the people all of the time…

Over the last couple of weeks I’ve seen a rise in calls for “HR to step forward”, or how strong HR is needed more than ever. The clarion call of a crisis, once again being used to throw the profession into the light. Remember 2007?

Whilst it starts with obvious decisions about furloughing, protection of wages, short term working, redundancies, protection of health, safety and wellbeing, managing remote workers and resource and contingency planning. It extends to issues such as executive reward, dividends, culture, engagement and productivity and post crisis recovery. There is no doubt that there is a lot for us to navigate.

The cynic in me wants to ask why it requires a global pandemic for the profession to find some backbone and step into the role that it should be playing every day? Why it requires something of such magnitude to bring a focus on the contribution that we make? But I guess beggars can’t be choosers, and as a collective we have been beggars for far too long.

We have seen and will continue to see some shocking examples of bad HR practice through this event, we need to hold these organisations and decision makers to account. But if we genuinely want to learn and grow from this, we also need to celebrate those organisations that are doing the right thing, protecting their employees and stepping up and into the right leadership space.

Because frankly, if not now then when?

Pious indignation and false promises

Running an organisation of any size is tricky. There is an assumption that simply because of your position that you must know the correct answer for everything.  Not only must your actions be without criticism, but your intentions too. And we will be the judges and juries of both.

Our intolerance of imperfection and propensity for cynicism serves us badly.

I’m in no way trying to absolve genuinely corrupt, immoral and (let’s be honest) bad organisations. Merely to make an argument for encouragement for improvement, rather than blanket judgment. It should also be said that this isn’t a factor of business alone, you could run the same slide rule over politics and other parts of society too.

Last week Tortoise published their assessment of the FTSE100 against the UN  sustainable development goals, you can see the full report here. What I think is fascinating about the approach is that it looks at both actions and PR, the walk and the talk. Of the top 20 companies overall, only 4 were “guilty” of overselling their actions and many quite significantly undersold their performance. Probably not what you’d think from big business, right?

Compare and contrast with the annual vacuous press release from the CIPD and High Pay Centre which talks about FTSE100 pay, high on moral indignation and low on understanding and intellectual rigour. Frothing at the mouth and screaming into the abyss on a topic of significant complexity without any intention to encourage or support change.

We say that we want change and then we right off progress as “washing”. Pinkwashing, purpose washing, vegan washing, even woke washing. We will be the judges of whether you really mean what you say, not you.

If we wanted to develop an organisational culture of positive strength, would we start by doubting individual intentions, blanket criticism, reinforcing stereotypes? Or would we praise and recognise, reinforce positive behaviours, encourage?

There is a lot wrong in the world, that goes without saying.  Business, politics, society, sport, media, take your pick. Whilst we should always call out the abuse of power and serious malpractice, I also believe you get the culture you deserve. Maybe we should spend a little more time celebrating and encouraging change, supporting and championing progress?

It might not make for the most exciting headlines, “Organisations do what they say they’re going to do”, or help us absolve our own consciences, but it would sure make for a more pleasant world.

Why we need to ban NDAs

Sometimes I think our profession is much like the British weather, we have an obsession in talking about its shortcomings, but yet nothing can be done to change it. My frustration is compounded in the rare moments where we genuinely have an opportunity to act for the betterment of the world of work, but instead choose to hide behind indecision and equivocation. There is no clearer example of this than the ongoing debate on the use of NDAs (non-disclosure agreements) in settlement agreements.

The broad reaction from the legal and HR professions (and their governing bodies) is weak and depressingly similar, “it depends on how they’re used”. Ultimately suggesting that the clauses themselves aren’t bad, it’s just the bad people (their members) who use them. This is akin to asking the National Rifle Association to opine on gun control. Because every NDA included in a settlement agreement will have had a lawyer draft it and another read it on behalf of the employee. 

Let’s just pause there for a second and let this sink in. In every case where a settlement agreement has been used with an NDA to silence a victim of sexual harassment, racial discrimination or bullying, the overwhelming likelihood is that a legal professional has not only acted for the perpetrator, but for the victim as well.  Let’s not let ourselves off the hook here either, the `HR profession is in many, if not most, cases entirely complicit too – they just don’t exist in all organisations. So is it a surprise that we argue for their continued usage?

In the same way that gun control is the only sensible way to ensure that people are protected  from the harm that these weapons can cause, the only way to ensure that NDAs are not incorrectly applied is to ban their use in settlement agreements. When I make this point the familiar riposte is to talk about business interests and confidentiality and make a bold statement that these are in the interests of the employee. This is intentional obfuscation, so let’s take some time to put these myths to bed. 

You can have a confidentiality clause without containing an NDA, in fact the Law Society describes it as follows, “Confidentiality clauses, which may include terms commonly referred to as non-disclosure agreements, within settlement agreements are used to stop commercial information from being shared inappropriately and to avoid reputational damage.” It is this last point that is central to their use, where clauses are inserted to prevent the employee from talking about the incident that led to the use of the agreement or indeed to disclose the existence of the agreement itself. No-one is talking about banning confidentiality clauses that reaffirm those that already exist in a contract of employment, just the use of NDAs to silence.

Now the idea that this is in some way in the interest of the employee. I’ve asked on numerous occasions for someone to give me an example where this is solely the case, where there is no interest in reciprocity from the organisation. Unsurprisingly, I’m still waiting to hear of one.  And of course the logic of this assertion is flawed in itself, because if non-disclosure was generally in the interest the employee, then they wouldn’t be looking to disclose it in the first place. The fact is that this argument is generally uses as a sinister arm twist, “it will be in your best interest if we say nothing about this matter…so you better not either…”.

NDAs are about power, they are about control, they are clauses that are used to silence those that are generally victims of organisations that have gone wrong. There may be the very odd case where they could legitimately be argued for, but their punitive use far outweighs any benefit. Every case of sexual harassment, discrimination, bullying, intimidation and unfair treatment that leads to the use of such a clause is a terrible indictment on the HR profession and our colleagues in the legal profession too. There is only one safe answer and that is an outright ban. Until that comes about, until our professional bodies find their backbones, I ask you to take the lead and to change your practice now.