What will be the biggest impact of the flexible working arrangements introduced last week under the Employment Act 2002? Will it be thousands of young men in the construction industry adjusting their working hours to become better dads? Or perhaps young mums no longer having to fabricate excuses about car breakdowns to look after sick children?

Well, possibly. But according to Makbool Javaid, an employment partner with DLA, the biggest effect may be felt in those peripheral aspects of the regulations that have been given scant coverage in government puffing.

“There are a number of overlooked nuggets which may produce the biggest changes,” he says. “For example, under the regulations the same-sex partner of a parent of an under-six-year-old is eligible to apply for flexible working. But how do you define a partner? For the regulations to work, a definition will be needed.”

So, thanks to the iron law of unexpected consequences, the main result of the flexible working regulations may be a legal definition of what constitutes a gay partnership. Is living together for six months — and with a firm commitment to stay together — sufficient? Or would shopping together and staying overnight regularly be enough? Time and an employment tribunal hearing will tell.

The Government has indicated a hope that few employment tribunal hearings will result from these regulations. Instead the intention is that employers and employees should come together in fruitful, positive discussion of flexible arrangements. That sounds like wishful thinking.

Sue Ashtiany, a partner at Nabarro Nathanson and a doyenne of equal opportunities lawyers, says that there are bound to be cases that will go to tribunal. “Every time there is a new right then conflicts arise,” she says. “In the UK people now tend to use their rights. I am constantly amazed by the preparedness of people here to fight about things. It is one of the hallmarks of our society. If people have rights they expect to enforce them.”

So while one of the Government’s aims is to stimulate sincere dialogue, there are bound to be allegations, Ashtiany says, that some employers are merely going through the motions. Detailed procedures are laid down about how an employee should make a request for flexible working (and the right applies only to those with young children or up to age 18 if they are disabled) and by when an employer should respond.

But do these procedures give scope for an employer to “get away with it”? It depends on who you listen to.

“The regulations mean that the employer has to take the process seriously,” Lorraine Heard, of Dickinson Dees, says. “It won’t be enough for employers just to reject the request on spurious grounds. The facts will have to stand up.”

Makbool Javaid is not so sure. “It’s a classic example of a piece of legislation that is open to different types of interpretation,” he says. “The Government will promote it to a trades union audience in one way and to an audience of employers in another.” This is best illustrated, Javaid says, by the detailed guidance issued by the Department of Trade and Industry. “This talks a lot in terms of employment good practice,” he says, “but this is not supported by what the law actually states. The political rhetoric about the regulations is expansive but the law itself is pretty minimalist.”

As a result we can expect a wide range of reactions to the regulations. “Many employers will see it as a framework for changing the structure of working life,” Ashtiany says.

“Although the number of employees it applies to is quite restricted, some employers will decide that they don’t want to discriminate between different types of employees and so will extend this opportunity to everyone.”

Jane Hayden-Smith, of Beachcroft Wansbroughs, by contrast, feels that it will have very little impact. “In practice a lot of employers, especially the larger ones and in the public sector such as hospitals, are already operating this kind of flexible working anyway,” she says, “so they won’t notice any difference.

“Meanwhile, the small and medium-sized businesses — the SMEs — are likely to find it much more difficult. They have fewer resources and may have good grounds to refuse an application. After all, you must remember that it is not an obligation on employers to offer flexible working. It is merely a requirement that they should go through the process of considering the request.”

Moreover, Hayden-Smith says, in those cases where SMEs are obliged to introduce flexible working the result is likely to be tension between those who benefit and those who do not.

“Yes, it is the small professional service businesses which are very client-orientated that are most likely to feel threatened by this legislation,” Ashtiany agrees. “They also tend to be the employers where the recruitment benefits of offering flexible working won’t mean very much.”

Could she possibly be thinking of law firms?

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