One of the hopefully positive outcomes of the pandemic is the substantial structural change to working practices which is likely to flow from the workplace changes implemented during the past year. As businesses grapple with what the new world of work will look like, “hybrid” working is emerging as the key buzzword. However, the range of forms it can take combined with the myriad of issues to consider can be overwhelming.
In this blog, we look at what hybrid working is and the range of employment law factors to consider when implementing a hybrid working arrangement. We also cast an eye to the future.
Before diving into the detail, however, it will be important for employers to take a step back to consider what their, and their employees’, “ideal” way of working might look like. For example, how much flexibility do employees want and how does that compare to the level of flexibility the organisation can accommodate? What are the minimum “must haves” for the organisation and its stakeholders? Having a clear strategic policy direction will be critical in helping to steer and inform the many more granular decisions that will need to be taken now and into the future when implementing a hybrid working arrangement. Employers can also refer to the ACAS advice on hybrid working, which includes guidance on creating a hybrid working policy.
What is hybrid working?
There is no specific legal definition of “hybrid working” or of “hybrid workers”. Rather, it is a form of flexible working which allows work to be split between the workplace and home (or other remote location). Businesses can therefore exercise a great deal of discretion in the way in which they implement hybrid working (including whether it interacts with other forms of flexible working, such as flexible hours). That said, there are employment law constraints which do need to be grappled with, and communication (both through policies and more generally) will be key in helping to set and manage expectations and ensure that appropriate boundaries and protections are in place.
Key action points
Many businesses are already consulting with their employees regarding future working arrangements in the non-legal sense, in order to help inform their approach.
However, if an employer intends to make mandatory changes to working arrangements (such as compelling employees who are contracted to work five days per week in the office to work from home for a certain number of days per week) this is likely to trigger legal consultation requirements as well. If 20 or more employees are affected by these changes, collective consultation obligations and the obligation to notify the Secretary of State should also be considered. For more information, see our blogs on Making changes to employees’ terms and conditions and Top tips for collectively consulting employees.
A hybrid working policy will be a minimum practical requirement in order to capture the organisation’s intentions and to set expectations, guidelines and rules around hybrid working arrangements.
For many organisations, a discretionary and voluntary policy may well be the preferred approach, as it allows for flexibility for both employees and the business (ie employees would not be required to move to a hybrid working arrangement if they did not wish to do so, and if the business wanted to keep the policy under review and change it from time to time, that should be possible, although over time there is the potential for hybrid working to become an implied term by custom and practice).
However, some organisations (such as those looking to reduce office space, or with employees seeking greater assurances) may wish to make changes to existing contracts of employment in order to embed the hybrid working arrangements contractually.
Even if a company does not seek to change existing contracts, consideration should be given to updating template contracts of employment in order to address potential hybrid working considerations (not merely in relation to place of work, but also other considerations such a management of confidential information). It is also possible that the technical requirement to issue an updated section one statement (ie a “section four statement”) could be triggered depending on how existing place of work clauses are drafted (although this is a requirement that is in practice frequently overlooked).
Finally, a wider policy review is also likely to be appropriate. Hybrid working may have knock on consequences in a number of areas, such as the ways in which disciplinary or grievance processes are carried out, health and safety policies, data protection, IT and confidential information policies. Less obviously, remote working can also present new issues in areas such as diversity and equal opportunities, so organisations may also wish to tailor those policies to highlight examples of potential remote harassment, for example, or to stress the importance of equal opportunities in assigning work, to avoid a potential two-tier work force with priority given to those in the office.
Hybrid working can offer many positive outcomes, but it can also give rise to risks for both employees and the employer. Consideration will therefore need to be given to protections that may need to be implemented. These include:
- Health and safety risk assessments and managing associated obligations such as those relating to display screen equipment. A particular concern in the hybrid context will be managing employees’ stress and mental health issues.
- Systems may need to be implemented to protect the business from breaches of the Working Time Regulations. For example, how will records of working time be kept? Employees should also be given clear instruction regarding taking appropriate breaks.
- Insurance arrangements should be considered, including whether the employer’s liability insurance policy is adequate for the proposed working arrangements and whether employees should inform their own insurers of their new working arrangements.
- Rules should be implemented to ensure that confidential information is appropriately secured in remote working environments and that sensitive telephone calls are not overheard.
- Related to this, employers may wish to provide their own IT equipment rather than allowing employees to use theirs (noting that equipment provided needs to be safe, maintained and insured as appropriate).
- Consideration will also need to be given to any data protection implications (including training employees on avoiding and dealing with data breaches).
- There is a risk that flexibility can be taken too far in a very literal sense – employees seeking to work from abroad can trigger additional obligations in relation to tax and employment rights, or create an unexpected permanent establishment. Employers may wish to ban overseas work altogether, or require case by case applications and approval.
- Blurred lines between home and work could also create additional risks in relation to ownership of intellectual property rights. For organisations for whom IP is key, a review of the employment contract provisions through the lens of hybrid working would be advisable.
Managing a disparate workforce, with some employees in the office and some at home, will require adaptation and a certain amount of flexibility. Care will need to be taken to support all employees regardless of their method or location of work. In particular:
- As noted above, assignments of work should be managed on an equitable basis. Some employees may be more likely to avail themselves of hybrid working arrangements (such as women with caring responsibilities or those with disabilities) and if they are disadvantaged as a consequence this can give rise to discrimination claims.
- Consideration should be given to whether employees might need to attend the office on short notice for certain types of work – if so, employers may wish to include a requirement in their policy or contracts that employees must be prepared to do so (although this will affect the level of flexibility that employees may have in their living arrangements).
- Performance management is often overlooked or put on the backburner even under “normal” circumstances – the hybrid environment will present new challenges for performance management and consideration will need to be given to how best to monitor and measure performance in a hybrid context. Employers may wish to reserve the right to mandate a higher level of office attendance where performance issues arise. Consideration should also be given to how best to supervise and support employees so as to avoid performance issues in the first place, where possible.
- For regulated entities, the expectations of the regulator will also need to be factored in when assessing appropriate levels of supervision, oversight and control.
- Hybrid working may test the limits of trust in the employment relationship. There are indications that employers’ concerns about trusting their employees when out of sight is misplaced, with productivity and work levels having in many cases increased over the lockdown period. However, some employers may wish to monitor their employees when working remotely (such as through software, which monitors computer, internet or email usage). The data protection implications would need to be carefully considered, appropriate impact assessments carried out in order to assess whether such monitoring is justified and proportionate, and appropriate policies put in place. In addition, the cultural implications would also need to be borne in mind, noting that if employees feel unfairly scrutinised that may in fact be counterproductive to the intended aims.
There are also a range of other miscellaneous considerations or “admin” that both employers and employees will need to bear in mind, such as:
- Employees may have expenses working from home or on a hybrid basis, or may want certain equipment to facilitate the new arrangement. There is no generalised obligation to cover employees’ expenses or provide equipment, although employers may agree to do so if it furthers their policy aim. Employers may also need to take into account health and safety considerations and the duty to make reasonable adjustments for a disability when considering the approach to expenses and equipment.
- Tax implications of policy decisions around expenses and provision of equipment should also be examined.
- Employees may have their own legal or contractual obligations to factor in if they are working from home, such as potential consent requirements as regards their landlord, mortgage provider or insurer.
New hybrid working arrangements may take some time to test, assess and “get right”. Implementing them by way of discretionary policy can help to leave room for movement, as can setting a trial period.
However, where employees are pressing for greater flexibility, the policy approach does not necessarily need to cater for all. Employers should remember that flexible working requests are still available in the usual way. For employees seeking greater flexibility than the organisation is prepared to offer on a generalised basis, they still have the option to apply for a flexible working arrangement which is more bespoke. In that case, however, employers should remember that they should comply with the statutory timeframe for considering and responding to the request, and that refusal of the request is only permitted for certain specified reasons. Additionally, if the request is accepted this leads to a contractual change to working arrangements. For more information, see our blog Future flexible working – top tips for employers.
Looking to the future
A new world of hybrid working will be a learning experience for all concerned. Both employers and employees will need to show willing and adaptability to help make it work, and communication and clarity of expectations will be essential. It is also possible that existing vulnerabilities in employment protections (such as those affecting the gig economy) may be exacerbated by the shift towards hybrid working, noting that flexibility and a move to digital solutions often go hand in hand with greater precariousness for certain roles and sectors.
The House of Lords Select Committee on COVID-19, which was appointed to consider the implications of the pandemic on the social and economic health of the country into the future, has recommended that significant steps will need to be taken to address likely increases in unemployment, and that the Government should consult on ways in which to strengthen existing employment rights to ensure that they are fit for purpose in a digital age. In particular, the following areas were flagged for particular attention or consideration:
- a potential right to “switch-off”;
- responsibilities for meeting costs of remote working;
- platform workers rights (such as Uber and Deliveroo drivers);
- monitoring and surveillance in the workplace; and
- a right for workers to access data relating to their performance.
It may feel as though we have already been through a dramatic change over the past year, but more is sure to come.
If you require further information about anything covered in this blog, please contact Charmaine Pollock or your usual contact at the firm on +44 (0)20 3375 7000.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, August 2021