James Tamm, Director of Legal Services at Employment Law and HR support firm Ellis Whittam, explains what you should consider when establishing a hybrid working model including some of the pitfalls to avoid.
‘Hybrid working’ has emerged as one of the new buzz-phrases of the business world. As the UK Roadmap out of Covid restrictions progresses and with many now used to working remotely, should employees go back to their workplace, or continue to work from home? Or is a hybrid of the two the best solution?
But as many business leaders are now discovering, hybrid working is not as simple to navigate as it may seem. There are numerous legalities to consider. It will likely impact employees’ terms and conditions of employment and your policies and procedures, too. It may also present potential discrimination issues and create challenges around data protection and confidentiality.
If you’re considering allowing employees to work both from the workplace and at home (or elsewhere) as part of their normal working pattern, here are six steps to follow.
Document any changes
Whether you’re looking to take an organisation-wide approach to hybrid working or planning to introduce this on a case-by-case basis, it’s essential that any changes are properly documented from a contractual point of view. This can either be through issuing an updated contract or by a letter of variation.
You may be considering a more ‘informal’ change, where nothing is put down in writing. Perhaps you feel this gives you more freedom to call people back to the office if things don’t work out as planned. However, keep in mind that even without a written agreement, employees could still argue that their contracts have been varied by custom or practice or by implication. Therefore, you should formalise arrangements as soon as possible to avoid potential disputes.
Keep in mind:
- Be specific about how often you expect your employee/s to attend the office, for example, ‘at least once a month’.
- If the employee is based outside of mainland Britain, take advice on immigration, tax, data protection and insurance.
- Make clear that when working at home, employees are responsible for regulating their own hours and rest breaks. Whether this is done on trust or by set hours will depend on your particular organisation.
- Also consider adding in other contractual rights, such as the right to enter the employee’s home to install, maintain and service equipment; to recover company property on termination; or to carry out risk assessments for health and safety purposes.
- To assist, you can download a free Home/Hybrid Working Policy template here.
Check your policies are fit for purpose
If your team will be based partially or fully remote, you may need to adjust your absence policies and procedures. For example, if an employee is too ill to attend the office on a day they would normally be required to come in, will this be treated as sick leave or will you allow them to work from home if well enough to do so? These things need to be made clear so that everyone understands the appropriate steps to take when sick.
Similarly, you might need to amend policies around appraisal, disciplinary or performance management to reflect hybrid working relationships. For example, will you require staff to come into the office for formal meetings or will you conduct them remotely?
Remember confidentiality and data protection
Ensure you have a carefully written confidentiality clause in the employee’s contract or ask them to sign a Deed of Confidentiality. This should make it clear what you define as confidential information and how the employee should ensure they keep such information secure. It should also make it clear that breaches of confidentiality can be considered as gross misconduct, leading to summary dismissal.
Confidentiality goes hand in hand with data protection. You should check whether you need to update your Data Policy and consider doing a data impact assessment for hybrid working. You should also amend your contracts, if necessary, to include the express right to monitor employees’ data, including their emails and Internet usage – and back this up with a clear IT and Telecoms Policy so that the employee understands what can be viewed and accessed.
Use trial periods
If you’re open to individual requests for hybrid working, consider how you will facilitate those requests. Will you utilise your existing flexible working procedure? If so, we recommend that you consider implementing a trial period if you are not sure how successful the arrangement will be.
Remember that if you are following the Flexible Working Procedure, this is a statutory procedure, and employers must notify employees of their final decision within three months of their flexible working request. As such, if you do want to try things out first, you will need to agree with the employee to postpone the final decision until the trial period has ended.
Your decisions mustn’t discriminate
Whilst there is no right to be given hybrid or any flexible leave, you do need to be mindful that a refusal can lead to claims of indirect discrimination if one protected group is more adversely affected than others by this decision. The classic example is female employees who request hybrid working because they are the primary carers for their children or elderly parents.
A justification defence is available if you can show that your refusal is a proportionate means of achieving a legitimate aim. It’s therefore essential that you have a reasoned and thought-out approach to such requests and give them conscientious consideration.
Provided the reason for it isn’t arbitrary and there is no discriminatory element, it may be possible to have certain members work from the office each day, whilst others are offered some form of hybrid working. For example, you could justifiably require more junior colleagues, who may need a greater degree of supervision, to attend work, so long as you ensure that they do in fact get the required support in the office.
Seek agreement before introducing a company-wide approach
If you’re considering a company-wide approach and want to impose hybrid working via a contractual change, you’ll likely need to seek agreement with your employees.
If you don’t have agreement, you will need to follow formal consultation requirements and have a sound business rationale for wanting to make the change. If it looks as though 20 or more employees will refuse to agree, you are then faced with the option of dismissing and re-engaging them, or putting them on notice that you plan to enforce the change anyway.
There are various legal risks involved in either scenario, including protective awards and claims for unfair dismissal and breach of contract, so take legal advice before pushing through any major change without consent.
For many organisations, hybrid working is a largely untested area, and there are many practical, legal and HR implications to consider.