Hybrid Working

On 19th July 2021 the Government removed its guidance advising employees, wherever possible, to work from home; however, it is undeniable that a long-term consequence of the COVID-19 pandemic is the increased ability to work from home, even in sectors and industries where it was previously never deemed necessary or possible.

Employers were compelled to provide the ability for their employees to work from home in order to keep their businesses going and many thrived in the circumstances, finding that employees were, in fact, more productive and happier having found a better work life balance.  For these reasons, it is a way of working that many organisations are keen to keep in the long term.  Over the past year it has sparked the buzzword “hybrid working” (also known as remote working, blended working or split-working arrangements or patterns).

A survey by ACAS found that over half employers in Great Britain expect an increase in demand for flexible forms of working; over half of employers expect to have staff working remotely for part of the week; and, just under half expect an increase in staff working from home all week.

However, that said, hybrid working or flexible working is not a legal entitlement and there are numerous considerations that need to be borne in mind when introducing it in the longer term. ACAS has recently published helpful new guidance in order to assist. Some of the key points are as follows:

  • Ensuring consultation takes place with staff (and/or representatives) about changes in working patterns; discussing all the necessary practical considerations that will still be pertinent (e.g. performance management and health and safety);
  • Offering appropriate training to line managers on managing employees with hybrid working practices in place;
  • Considering trial periods to see what works for different job roles and considering any adjustments to the arrangements that might be required;
  • Ensuring staff who are working remotely are communicated with regularly and are not excluded, they should have the same access to opportunities as those in the workplace;
  • Ensuring decisions made in relation to hybrid working are made consistently, fairly and transparently and that if requests can’t be accommodated then alternatives are discussed directly with the affected employee;

The full advice can be found here: Hybrid working | Acas

It is important to remember that a move to hybrid working could still amount to a change to an employee’s terms and conditions of employment. As such, it is essential that organisations have consideration to the following steps:

  1. Create and put in place a hybrid working policy – outlining how things will work and setting limits whilst still allowing scope for flexibility.
  2. Review and adapt any related policies already in place – for example, the disciplinary policy is likely to need to provide for a scenario whereby the organisation can remove the right to work remotely as a form of disciplinary action.
  3. Consult with employees and their representatives and amend employment contracts.

In order for hybrid working to work effectively, it is vital that a policy is in place to govern it. Via the use of a detailed policy, the employer will be able to set limits, such as when the right to hybrid working might be taken away or, locations that employees cannot work remotely (for example, in public places).  Proactively putting in place such a policy is likely to reduce the number of flexible working requests that you receive and will assist in dealing with arrangements consistently so that employees know what to expect.

Consistency is a key element to bear in mind when dealing with hybrid working requests. If your business allows an employee to work flexibly but refuses another’s request, the disgruntled employee could treat this as a breach of contract. Subject to the reasons behind the refusal, it may also amount to discrimination.

It is important to take great care with requests to work from home: a refusal to allow working from a remote location could, in certain circumstances, constitute indirect discrimination on the grounds of sex, disability or age. It’s also important to ensure that part-time workers are not treated less favourably when considering hybrid working arrangements.

Upon receipt of a request for homeworking or hybrid working, you might want to be satisfied that the worker has a suitable place to work at home, ensuring that and family commitments don’t impact working time.  If this is the case, although the usual position (and our advice) for employers is to steer clear of asking express questions about childcare, knowing that appropriate arrangements have been put in place might be pertinent to whether such a request can be approved.  In this context, you may ask these types of questions but must ensure the same questions are asked of both male and female workers in order to avoid any potential discrimination accusations.

If you’re currently considering the best way to deal with hybrid working arrangements now that employees are no longer required to work from home, or would like assistance in preparing a hybrid working policy, please contact us and we’d be happy to discuss this further.

Laura Kelleher, Solicitor

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