What is hybrid working?
Hybrid working is a type of flexible working where an employee splits their time between the workplace and working remotely, in most cases from home. This article discusses the employment law implications of hybrid working, addressing the specifics of what employers need to do when they have made the decision to introduce long term home working or hybrid working arrangements.
Hybrid working is just one part of the larger category of flexible working that includes part time, flexitime, annualised hours and job sharing as well as hybrid working. Hybrid working covers where work is done.
The proportion of workers in the UK who worked entirely from home was relatively low until the Covid 19 pandemic. Hybrid working proved popular with employees and the exponential growth seen during the pandemic is holding firm as employers compete for candidates in the current employee driven market conditions. In research commissioned by Acas during March – April 2022, 60% of employers surveyed have seen hybrid working increase following the pandemic, just over half (52%) have seen an increase in staff working from home full-time. Following these figures, Acas has published updated advice for employers regarding hybrid working, this is outlined below.
An update at this point about flexible working in general; in December 2022 the Government completed a year long consultation which started in December 2021 called Making flexible working the default. As a result of the consultation, the Government is going to introduce legislation so that in the future the right to request flexible working will be a ‘day 1 right’ for all employees. Note, this is the right to request flexible working, but does not guarantee flexible working, as employers will still be able to refuse flexible working on one of the 8 current statutory grounds. Until this change comes into force, the right to request flexible working is only available after the employee has worked for the employer for 26 weeks.
The extent to which hybrid working becomes firmly embedded as the new normal way of working no one knows; it may cool off a little as businesses, wages and jobs come under increasing pressure in inflationary times. But at some level it is here to stay and organisations will take different approaches to it depending on their requirements. As we are seeing, they will change and tweak arrangements in an iterative process to strike the right balance.
Better, but not perfect
There are some clear advantages including reduced overheads, enhanced staff retention and motivation, technological competency and brand reputation. But downsides have also become apparent, for example reduced collaboration, with teams becoming more siloed, increased isolation, reduced oversight, problems with inclusivity, communication with training those at the early stages of their careers, and big issues around data security.
- Employers will need to address a range of legal and practical issues, including:
- Considering the need to tailor standard employment contract clauses to encompass homeworking or hybrid working.
- Introducing new policies and reviewing existing policies to set out the arrangements and conditions for homeworking or hybrid working.
- Taking appropriate measures to protect confidential information and personal data.
- Reviewing the health and safety implications of the arrangements, including carrying out a risk assessment.i.e in all likelihood this will be an update of the risk assessment for home working during the pandemic
- Deciding whether any special equipment should be provided.
- Considering whether any special equipment should be provided.
- Considering whether any special planning or insurance arrangements are required.
- Deciding what arrangements should should be made for the management and supervision of certain types of homeworkers and hybrid workers.
- Identifying the tax consequences of homeworking and hybrid working.
- And firmly on the practicalities, in the light of the imminent energy crisis, some thought at least given to covering the cost of heating and to a smaller extent electricity when employees are working from home.
Acas publishes latest advice for employers on hybrid working
Acas has provided updated advice to employers on hybrid working, after its latest survey found that 60% of employers have seen it increase compared to before the pandemic.
Following the research, Acas published the following advice to employers:
Employers will need to ensure that staff who work remotely have access to the same opportunities as those that are physically in a workplace. Acas has advice on how to keep connected with staff that are hybrid or home working, consider whether it is suitable for their workplace or if other types of flexible working are better suited for some roles.
- Hybrid working policies should explain how hybrid working can be requested, detail how job roles are assessed and how decisions will be made.
- Remote staff should have equitable access to opportunities such as team building, training and social activities as those in the workplace.
- Transparency and fairness are important when deciding whether to approve staff requests for hybrid working. Other forms of flexible working may be considered as alternatives.
- Suitable equipment and information to facilitate safe at-home working is necessary.
- Employers must comply with the law on working hours. Staff working at home should take adequate rest breaks and look after their mental health.
- A trial period to test hybrid working and establish any necessary adjustments may be useful.
This advice follows Acas guidance published in June last year which can be found at acas.org.uk/hybrid-working.
Implementing hybrid working will require changes to contractual terms. General flexibility clauses or mobility clauses that already exist in employment contracts are probably not enough and it would be best not to try to rely on them. It is a contractual requirement to detail the place of work so changes to contracts are likely to be required, for that reason if no other.
Employers are required to provide employees and workers with a “written statement of particulars of employment” which must include key terms such as those relating to hours of work and place of work (section 1(1), ERA 1996). This is often referred to as a “section 1 statement”. Where changes are made to any of the particulars covered by a section 1 statement, the employer must give the employee or worker a written statement containing particulars of the change, known as a “section 4 statement” (section 4(1), ERA 1996). A change from workplace-based working to homeworking or hybrid working is likely to trigger this statutory requirement.
There are a number of areas in the employment contract that may need to be changed, these are:
- Hours of work
- Holidays and sick leave
- Restrictive Covenants
- Intellectual Property
- Equipment, data security and monitoring
- Discipline and Grievance
- Right to enter
- Trial Period
- The right to revert
There is significantly more detail on each of these than this article allows. Please get in contact with us for more information and assistance.
Finishing up with the final point in this list, it’s worth planning now – on the way in – for what happens if the business needs to revert back to a full office working environment. There are a number of circumstances in which an employer may wish to bring an employee’s homeworking or hybrid working arrangements to an end. For example:
- where the employer has reserved the right to ask the employee to revert to workplace-based working practices at the end of any unsatisfactory trial period.
- where homeworking or hybrid working has been a stopgap or temporary solution to a problem.
- where changes to the business or workforce make it impossible for the employer to organise work effectively with the employee working at home.
- where the employee’s role or responsibilities change so that working from home is no longer suitable.
A contractual term dealing with termination of a homeworking or hybrid working arrangement should set out the circumstances in which the right to terminate can be exercised and the notice that the employer will provide.