There has been a lot of press and attention lately on the topic of companies requiring their employees to come back to the office and whether employers will be offering hybrid working going forward.
The pandemic has given employers the opportunity to assess home working and for many organisations it has been a success. Naturally, hybrid working is a popular option amongst employees and employers alike for reasons such as providing staff with a better work/life balance and enhancing productivity and performance, whilst also appreciating the benefits of being in the office, such as collaboration with colleagues.
But what damage may it cause to a company’s culture and a collegiate team spirit, and does hybrid working suit everyone?
It is our firm view that offering hybrid working on a permanent basis should not be a quick decision and there are some important considerations to be thought through carefully and crucial steps to be taken.
To get you started we set out below our top 10 tips for successfully implementing hybrid working in your organisation, either for all staff or for particular employees.
Lastly, with the above in mind, Jones Chase have put together a Hybrid Working Toolkit to help your organisation design its own hybrid working model and help prepare your strategy to implement this model. We are happy to discuss this with you and we can be contacted on the details at the foot of this bulletin.
The information set out in this bulletin is accurate as at 14th October 2021.
- Think carefully what form of hybrid working to implement
This may sound obvious, but it is an important starting point and should be thought through properly. Hybrid working is an umbrella term which encompasses many different forms of flexible working. On the stricter end of the spectrum, employers may introduce set hours and days working in the office and at home, such as 9am-5pm Monday-Wednesday office based, Thursday and Friday 9am-5pm working from home. Or, a more flexible approach, allowing employees to work whenever and wherever they like. Or, somewhere in the middle.
Employers will need to consider the needs of the business taking into account any difficulties experienced during the pandemic and what employees want. There may be variations across different parts of the business which should be considered and a variety of approaches could be taken. An employer may like to nominate a particular day of the week in which the whole of a team are physically present together which may, for example, enhance creativity, team spirit and brainstorming – areas which may be suffering due to video conferencing fatigue. Employers may also want to ask their workforce what their preferences are as regards hybrid working. It will be important to listen to a potential wide range of views.
- Watch out for any potential discrimination
Employers should be wary when adopting a hybrid working policy and when applying it that they are not indirectly discriminating against a protected group of people.
By way of example, it is generally accepted by the employment tribunal that women have more childcare responsibilities than men. This should be considered when implementing a particular hybrid working policy that may put those with childcare responsibilities at a particular disadvantage compared to those without, thereby potentially indirectly discriminating against women.
- Get your contracts right
Note that unless an employee’s contract already contains a flexibility clause, a change to their place of work will need the employee’s consent. If a hybrid working arrangement is agreed, an employer will need to make sure that the relevant parts of the employment contract are updated to reflect the arrangement. Employers will also want to build in flexibility to such clauses so that the arrangement may be amended again in the future or in certain circumstances (such as disciplinary issues arising). If they don’t, then seeking to change this going forward would be a breach of contract on the employer’s part potentially entitling the employee to resign and claim constructive dismissal.
Employers should also consider amending any disciplinary policy or performance management policy to reflect hybrid working arrangements.
It might seem tempting to simply let your staff work under a hybrid arrangement, without putting anything in writing. However, as set out in previous guidance from Jones Chase, each day that goes by working under a hybrid arrangement is an implied acceptance by the employer that working from home is fine; any contractual office–based place of work clause is being eroded daily to become a working from home clause by custom and practice or an implied contractual right. This means that staff may have a contractual right to work from home, with no express right to vary and which employers will not be able to change without agreement.
- Adopt trial periods
Once a hybrid working arrangement is agreed this will be a permanent change to an employee’s employment contract. We would therefore suggest that employers offer all hybrid working arrangements on a trial basis initially and ensure that managers truly assess the suitability of a hybrid working arrangement during the trial period.
Employers might feel comfortable to allow hybrid working if they have witnessed the success of home working during the pandemic. However, government directed homeworking, during a time where almost everyone is working from home and there is an emphasis on making things work, is different to hybrid working at a time when many will be back in the office and everything is starting to get back to normal. Therefore, the suitability of hybrid working for each individual should be assessed.
- Have a health and safety representative
All organisations are required to employ an individual to act as a health and safety officer. Their role is to prevent work related illness, accidents and injury in the workplace, which extends to people’s homes when they work from home. This individual can be responsible for ensuring regular risk assessments and equipment checks and can be the designated individual for staff to go to with a health and safety concern.
- Do health and safety risk assessments
Employers have the same health and safety responsibilities for staff working at home as for staff working on-site. This includes a duty to safeguard their health and safety and undertake appropriate risk assessments.
Employers will therefore need to undertake a risk assessment for any member of staff working from home, which includes hybrid working. If these were carried out in relation to any temporary arrangements during the pandemic, they will need to be done again in relation to any new permanent hybrid working model.
- Consider what equipment is needed and who insures this
It is an employer’s responsibility to provide the right equipment to employees, whether working at home (hybrid or full time), or in the office, as part of their health and safety obligations. Conducting a risk assessment referred to above should enable an employer to know what equipment a particular employee may need. An employer is responsible for buying this equipment and ensuring that it is safe.
If this was not done during enforced homeworking during the pandemic, this must be addressed now. Risk assessments will also need to be repeated as employees’ circumstances change and equipment needs may also change. The duty is an on-going one.
Employers also need to consider who is responsible for insuring company property at an employee’s home and if this is the employee’s responsibility, this needs to be clear.
- Don’t forget mental health
Employers should have procedures in place to spot mental health and safety issues, such as stress at work and potential problems arising because of lone working. An employer’s health and safety duty extends to mental health.
As part of this, employers should consider:
- implementing a lone working policy;
- implementing a mental health at work policy;
- establish appropriate boundaries around working time;
- having an anonymous employee assistance hotline; and
- electing mental health champions.
9. Beware of data security
Employers should consider data protection legislation and ensure that staff working from home are adhering to the relevant principles. Staff must be educated and trained on their obligations in this regard. For example, how to print, store and dispose of work-related documents securely. Hybrid working must therefore be covered in an organisation’s data protection policy.
If your current policy doesn’t address the same, your data protection policy needs to be updated.
Employers should also carry out a data privacy impact assessment of the data protection implications of any hybrid working arrangement.
- Have a clear, well-written Hybrid Working policy in place
If employers are going to allow their staff to work from home, they should be putting in place a detailed policy. This should cover matters such as staff conduct, confidential information, health and safety, data and security and insurance as discussed above.
Employers may have a home working policy in place which covers all the necessary considerations for a home worker, which will also apply to any hybrid working arrangement. As such, the wording should be reviewed to ensure hybrid workers are covered or to make it clear that this policy also applies to hybrid workers.
Jones Chase’s Hybrid Working Toolkit
We appreciate that dealing with contractual changes and updating a raft of policies, can be an intricate and time consuming affair, which is difficult to fit into an already busy working day.
We always want to help our clients and with this in mind, have put together a Hybrid Working Toolkit.
The Toolkit is designed to take our clients to the next level and allow them to safely embrace the benefits brought by hybrid working, without the legal risk and time consuming complexities of getting a safe hybrid working system in place, saving our clients a lot of time.
Feel free to contact us at firstname.lastname@example.org or 0203 837 9914 if you are interested in hearing more about this toolkit. We would love to help you.
About the firm
Jones Chase is a specialist employment law firm based in the centre of London with an excellent track record of looking after those that we assist.
We fundamentally believe in helping both businesses and people with all their employment law needs.
Feel free to contact us should you require further information or need any assistance. We are always happy to speak to people and point them in the right direction.