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Is the IP profession facing a flexible working problem?10608569 print

Notwithstanding the very recent developments (as I write this on the 30th November 2021) in respect to new Covid variants and the potential about turn on home working policies at a governmental level, there’s been some very different approaches to flexible working as restrictions began to ease. The new variant is an additional hurdle but certainly earlier in November we were finding that the UK IP profession (or at least firms of patent and trade mark attorneys) fell into one of two camps when it comes to home and flexible working. The camp with the most tents is currently a model where employees are expected to be in the office 2 or 3 days a week as a norm with the remaining two (or three) from home. Then there’s a smaller group of firms who are very easy going about where people work from, with fully home working being entirely possible and supported. I’ve heard of a few outliers of firms who are insisting that all staff will be expected to be in the office five days a week but, rather surprisingly given where the profession was in 2019 on flexible working, this is now very much the extreme view.

What I am interested in, is what the consequences will be particularly into 2022 when the impact of Covid on the work place is in the rear-view mirror. Omicron puts all of that into doubt but at some point, we will know where the market truly is. A compounding factor is whilst there has been a marked increase in open vacancies there are very few attorneys or IP support staff looking to move firms, so I don’t think we have got a true sense of the motivations of people who are moving positions. However, every conversation we have had with a prospective candidate about moving firms in at least the last six months has covered remote working policies. So flexible working will most definitely be an issue.

This is backed up by data – 83% of respondents to our last salary survey said that work/life balance was either the most important or quite important (the second rank out of 5) in deciding to move firms. Then 77% ranked remote working the same way. Work/life balance and remote working were two of the top three factors in moving positions (with base salary ranking second, behind work/life balance).

What will all of this mean? There are a few factors at play. First, that a shortage of candidates in particular technical areas (electronics and biotechnology) may require firms to choose between leaving a vacancy unfilled or being much more accommodating in respect to flexible working. This will either be because a candidate requires it on a local level or because the only way to source a particular role is to find a candidate who lives nowhere near where a firm has an office. Second, that attorneys who have adapted to working from home with the benefits of no commute, more time with family and potentially higher productivity will be reluctant to return to an office; even on a hybrid arrangement, and so might seek out firms who will be more accommodating. Third, that the, at present, smaller group of firms that will consider candidates who wish to work fully or near fully remotely will grow and more importantly the ones that have moved first will have a competitive advantage in sourcing candidates.

There are therefore considerable risk factors for firms. Whilst I doubt that fully remote working will be a majority position if more firms begin to offer it, those that don’t will have to find other ways to attract and retain staff. On the other hand, if fully remote working broadly stays where it is in respect to the number of firms that offer it, then there will be a limited number of options for candidates to consider. This would mean that making that kind of change with the undoubtedly significant upheaval it would cause, could be mostly or entirely unnecessary for practices. The best strategy may be to allow for more flexibility where possible, to find a way to justify to a workforce why a particular new hire or existing employee can work remotely when the majority of employees cannot. That’s an extremely difficult needle to thread - an approach that considers individual circumstances without necessarily setting a precedent. The dangers of getting this wrong, however, could be significant. If an employee feels they are being treated unfairly/unreasonably then they may well move on, and if they find a new employer who is more accommodating, they could cause their colleagues to follow them there (particularly in circumstances where they agree that their former colleague’s circumstances were not handled well).

The challenges of getting flexible working right in 2022 are going to be significant and what is the market norm may well move through the year. It will be very difficult for firms to manage but in a climate where jobs are increasingly difficult to fill then what firms might want their policy to be and what may be achievable could be very different.

Pete Fellows.

Fellows and Associates



61 Bridge Street,

+44 (0) 207 903 5019.
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