To help you adapt to a post-COVID climate, we take a deep dive into hybrid working.
The easing of restrictions on 19 July, which saw the long-standing government guidance to work from home where possible finally lifted, did not bring a flurry of commuters returning to their original workplaces in many cases.
Perhaps that wasn’t surprising given the controversy voiced by portions of the medical and scientific communities about restrictions being removed in the way they were and the spiralling numbers of COVID-19 cases being reported at that time. The 19 July also coincided with the first day of the school summer holidays for many pupils which gave working parents an additional reason to pause and take a breath before jumping back into the office.
But with confirmed COVID-19 cases apparently now falling, commentators wonder whether and, if so when, we’ll see the return to workplaces that are starting to feel like a memory of a working world gone by.
Of course, the necessities of the pandemic and lockdowns meant that home and/or hybrid working suddenly became the new normal for many. Fast forward 16 months, and some wonder whether previous ways of working are capable of snapping back or whether something more fundamental has shifted.
The new ACAS guidance notes some of the benefits reported for employers on hybrid working such as increased productivity, job satisfaction, being able to attract and retain a more diverse workforce and improving trust and working relationships.
Likewise, we have previously considered whether hybrid working helps support employees’ mental health and wellbeing.
Whatever your view, one thing is clear which is that hybrid working is on the radar and organisations need to be ready for both implementing their own plans and for dealing with any requests from employees to work differently.
In this article, we’ll take a look from a legal perspective at some of the other issues for employers to consider when implementing hybrid working on either a temporary or a permanent basis.
What is hybrid working?
Hybrid working is commonly understood as a mixture of working in the normal workplace and working remotely. This can include working from home. Of course, during the COVID-19 pandemic most remote working has been from home.
It’s important to acknowledge that hybrid working will not suit every employer nor, indeed, every employee. However, statistics show that the number of people interested in or considering hybrid working is on the rise, with people seeing the benefits of both some time in their normal workplace and some time working elsewhere.
If you’re an employer considering implementing hybrid working, what should you think about? Here are our top areas on which to focus:
Place of work
For those employers now contemplating a permanent move to hybrid working, contractual provisions will need to be closely examined.
Employers are legally required to specify the employee’s place of work (section 1, Employment Rights Act 1996). According to the Office for National Statistics (ONS), the pre-pandemic proportion of official homeworkers in the UK (either those working mainly at home or those using home as a base for mobile working) was relatively low at just 13.9% as at March 2014. As such, many contracts will refer to an employer’s office or offices as an employee’s place of work.
Changing an employee’s place of work will amount to a contractual variation requiring consultation with the aim of seeking employee agreement. Where this applies to 20 or more employees at a single establishment, collective consultation obligations requiring minimum periods of consultation and employee representatives may be triggered and specific advice should be sought. Last year, my colleague Lee Jefcott examined this issue in his article which you can read here.
Careful thought should be given as to how the reference to the employee’s place of work is drafted in contracts, as well as how hybrid working could impact other rights and obligations. For example, will you set a fixed number of days for your employees to work in the office and remotely? Will those be the same day(s) each week? This will impact upon the drafting of the contracts. Most employers will want to require hybrid working employees to attend the office from time to time for client or team meetings, for training and internal procedures such as appraisals (even on days when they may normally work remotely).
Hours of work
One of the key advantages of homeworking, which can also translate to hybrid working is often cited to be working more flexibly and using precious time otherwise lost to the commute to increase productivity. Conversely, the downside is often that for employees, it can be difficult to establish and maintain the boundaries between work and home (something that we have previously discussed in our blog about the impact of homeworking on mental health and wellbeing and, more recently, in our blog about whether hybrid working helps support employees’ mental health and wellbeing).
Whether or not businesses intend to move to hybrid working on a permanent basis, employers should carefully consider working patterns and expectations. Does it suit the business to move away from the rigid concept of 9-5 working and introduce a more flexible core hours way of working? Is this something that your organisation will look to prescribe by way of contract or policy or can you let it develop more organically and in line with changing business needs?
Wherever people work, employers should note that the Working Time Regulations 1998 continue to apply. Thought should therefore be given as to how and if breaks are monitored and whether it is appropriate to make clear in contracts that employees take responsibility for ensuring they regulate their working time and breaks.
Right to enter
A key right for employers to reserve (though one which might be met with resistance from employees) is the right to enter the employee’s home if necessary. This may include, for example, to install, maintain or remove company property and to carry out assessments for health and safety where these cannot be done remotely.
The contract should also make specific provision for the return of company property on termination of employment since this could be more difficult where equipment is not within the office.
Expenses and tax
Employers will need to revisit expenses provisions and policies to redefine where necessary what expenses can be claimed.
For example, where employees are permanently based at home for defined days each week, will employers cover energy, telephone and broadband costs on those days? What about travel expenses to attend the office on home working days? Note that depending on the nature of the employee’s employment, employers may be under an implied duty to meet an employee’s out of pocket expenses incurred in course of their employment.
Specific tax implications can apply in the homeworking context and employers should seek specialist tax advice on the implications of homeworking.
Data and confidentiality
Data protection and hybrid working provides employers with a particular challenge.
Employers will need to consider whether specific training is required and should update their data protection policies where necessary.
This could address issues such as ensuring that IT equipment provided by the business is used solely by the employee rather than by the wider household, how any paper files will be secured and stored at home, whether employers need to provide a secure means of disposing of paper (such as a home shredder) and whether personal data stored electronically are subject to rules on appropriate storage, retention and deletion.
My colleague Hannah Morrison has considered these issues in her blog.
Health and safety
The Health and Safety at Work Act 1974 provides that an employer is responsible for an employee’s health, safety and welfare so far as is reasonably practicable.
This becomes more of a challenge in a hybrid working context for the time the employee works remotely. Employers will need to ensure they comply with their obligations by providing risk assessments that highlight any measures required to address risk.
During the pandemic, many employees have had to work as best they could while at home. For some that included balancing laptops on beds, sofa arms, windowsills and even ironing boards in the absence of a home office and desk.
Whilst that was an urgent response to an emergency situation, if not already, employers should audit and assess how employees are working and whether provision needs to be made of desks, chairs, laptop risers and other IT equipment as well as sufficient internet and telephone line access.
In doing so, employers should also ensure that insurance provision extends to equipment used outside of the office.
Health and safety policies should be revisited to ensure appropriate mechanisms are provided for reporting accidents or injuries at work that occur at home and employees should be asked to confirm that their home mortgage/lease/insurance provisions do not prevent them from working from home. Colleagues in our Regulatory team are able to assist with queries about health and safety polices and much more.
Employers should consider employees on a case-by-case basis and be especially mindful of their obligations to disabled employees under the Equality Act 2010 to make reasonable adjustments.
Note that disabilities can of course extend to mental health conditions which can be amplified where employees feel isolated at home as discussed by my colleague, Susan McKenzie.
Engagement and culture
Culturally, employers will also need to consider how on a long-term basis employee engagement will be maintained when employees are working in different locations. Employers need to avoid a “two tier” workforce. How will supervision be provided? How will teamwork and collaboration be facilitated? How will performance and welfare be monitored?
Speak to us
In an uncertain climate, one thing that seems clear is that whilst we hope COVID-19 will be temporary, the changes it has brought stand to change the way some of us work forever.
If you are looking to embrace hybrid working or trying to resist it, it’s important not to fall foul of your obligations as an employer and to understand how to approach this issue with your workforce.
If you have any questions about hybrid working, please do get in touch with a member of our Employment team.
Where your question is focussed on health and safety, please contact a member of our Regulatory team.
This article contains a general overview of information only. It does not constitute, and should not be relied upon, as legal advice. You should consult a suitably qualified lawyer on any specific legal problem or matter.
