What is hybrid working?
A phrase born in and in response to the Covid-19 pandemic, 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, focussing on the specifics of what employers need to do when they have made the decision to introduce long term homeworking or hybrid working arrangements.
To clear any confusion, hybrid working is 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 pandemic. However, the numbers are now likely to grow, given its evident popularity, the employee driven market place the UK is currently in, and as employers reconsider their operating models in light of the pandemic and these forces. Indeed, the Government last December published a consultation document, Making flexible working the default, proposing various reforms to the right for employees to request flexible working, taking into account changes in working practices brought about during pandemic. Its own flexible working task force has recommended that flexible working should be the default position for all workers post-pandemic, and the Welsh Government perhaps unsurprisingly has confirmed plans to encourage long-term remote working.
The extent to which hybrid working becomes firmly embedded as the new normal way of working no one yet knows, but it looks likely it is here to stay. Companies will take different approaches depending on their requirements and, as we are seeing, 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, 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 has produced a number of resources to assist employers. The Hybrid and home-working guide can be found at acas.org.uk/hybrid-working and there is a variety of information in this guide.
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.