Hybrid working- the new normal?

Many businesses have been doing phased return to workplaces over the last few months, but the workplace environment will look very different to the pre-Covid working environment. With some workers looking forward to returning to the workplace and others preferring to work from home, employers will have to accommodate differing needs and create an IT and networking infrastructure to do so.

With some exceptions, the general understanding among UK businesses is that as they will adapt to a post-Covid working environment, the majority of employers will adopt a hybrid approach going forward. In many cases, this means staff will be able to opt for a mixture of home, workplace and remote working, unless their job or location prohibits it. There are however many complications in this way of working as businesses will have to plan how this will work in the long term.

Many employers may wish to assess employee wants against business needs and may not be ready to move to hybrid or remote working straight away. They may wish to consider the following options.

  1. To trial hybrid working

For this to happen, it is important that the temporary working arrangement between the employer and employees is documented, making clear that it is only a temporary variation to the terms of the employee’s contract. The written agreement should state its start and end date reserving the right to cut it short or lengthen it and any other agreed changes. It should record that the employer also reserves the right, at the end of the agreed trial period, to require the employee to revert to their previous working arrangement. The document should be signed by both parties.

Reverting to the previous working arrangement may have its own issues as the employees may not be happy and the employer has to ensure that they are not seen to be discriminatory in any manner. Even if an employee could not bring a discrimination claim, the exercise of a contractual right requiring the employee to revert to workplace-based working is subject to the implied term of mutual trust and confidence. To terminate an arrangement which has been working satisfactorily without good reason may be a breach of that implied term (giving an employee the opportunity to claim that they were constructively dismissed). Therefore, any change should only be implemented after consultation and on reasonable notice.

Employers should be mindful that it is their duty to ensure that all health and safety requirements are met for employees who are working from home i.e. their workstation etc.

  1. To only allow certain members of staff to work from home depending on their role

An employer needs to define who is eligible for hybrid working therefore making it clear which roles are suitable for hybrid working. The employer may have concluded that hybrid working is not suitable for some roles, such as certain sales roles where face-to-face contact and the personal touch are a requirement. Employers will have to explain the rationale behind any role which is not allowed to do hybrid working and eliminate any possible claims of discrimination. The clearer the employer is on which roles are suitable for hybrid working, the less likely it is that there will be disputes with employees over whether they can move to hybrid working.

For the employees, that will be allowed to work from home, the guidelines at point 1 should be followed.

  1. To get staff back into the office as it was pre-Covid

Having all staff back in the workplace may be better for business needs but may lead to some unhappy employees. The employer has an obligation to look out for the health and safety of their employees and issues may occur if the Covid cases continue to rise and employees have higher chances of contracting Covid from one another.

If sending all employees back to the workplace seems to be the only option even though they have expressed their preference of hybrid working then this should be explained and justified to employees. Keeping them in the loop will always be beneficial.

Whatever organisations plan to do going forward, it is key to listen to employees and take their views into consideration. A happy workforce normally makes a successful workforce and everyone should be working towards the same goal.

If you want to discuss any of the issues raised in this Blog, Vajiha Ali from our employment team would be happy to help and you can contact her on vah@bbmsolicitors.co.uk or speak to her on 01955 604188.

 

This briefing note is current as at 15 July 2021 and is our understanding of the position described at that date. Legal advice ought to be taken before relying on its terms (particularly to ensure the law has not changed).