Whilst some employers were initially reluctant to send their employees to work from home at the beginning of the pandemic, there is an increasing expectation that many employees will now work from home for at least part of their working week.
For some staff home working is not an option for example, in certain roles in the bingo business. Therefore, within an organisation a “two- tier” workforce could emerge where office staff work primarily from home with hospitality staff unable to do so. This can be challenging to manage with the business. Therefore what are the benefits and drawbacks to allowing employees hybrid working arrangements and what should employers be considering going forward?
Benefits
The benefits of hybrid working are commonly seen as follows:
- Reduced overhead costs – the need for expensive offices and other related overheads may be reduced.
- Increased productivity – there is evidence to suggest that employees working from home without the need for a long commute to work are more productive.
- Better work/life balance – many workers respond well to working from home for at least a few days per week.
- Skills retention – workers who might otherwise be lost because of family relocation, new family or caring responsibilities, or temporary or permanent disability may stay if offered appropriate arrangements.
- Recruitment – employers that allow some homeworking will have access to a wider geographical talent pool. The ability to work from home is also likely to be seen as a benefit by potential candidates.
- Team flexibility – geography and travel time are less of an impediment and teams of workers can be assembled more easily.
- Resilience – organisations geared to homeworking and hybrid working may be better able to withstand external disruptions such as transport problems or adverse weather conditions.
Drawbacks
The drawbacks to a hybrid working arrangement for employers include:
- Culture – potential damage to team working and company culture.
- Collaboration and innovation – reduced face-to-face collaboration among colleagues and teams, which is not only important for innovation but also for employee social interaction and wellbeing.
- Learning and development – reduced on-the-job learning and training opportunities for junior or less experienced workers.
- Productivity – the employer will be reliant to a large degree on trust and may fear that some workers will not “pull their weight”.
- Data security – potential confidential information, data security and data protection breaches.
- Inclusivity – employers may face challenges ensuring inclusivity and participation with a dispersed workforce, where some employees attend meetings from the workplace and others join remotely.
- Mental health – employees working from home may experience loneliness and boredom, feel alienated from their organisation and developments within it. They may also find it more difficult to separate their work life from their home life.
- Supervision – more difficult to supervise junior employees and provide on the job training.
Legal Implications
Discrimination
An employer considering or introducing hybrid working, or if it’s already in place, needs to be aware of the potential for discrimination claims arising.
For example, the refusal to accept a hybrid working request from a male employee who has child care responsibilities, but accepting a similar request from a female employee.
A disabled employee may also have protection in relation to a homeworking or hybrid working request as such a request could amount to a duty on the employer to make a reasonable adjustment.
If hybrid working is only allowed for experienced staff, this may lead to age discrimination claims from younger employees.
Therefore, it is important employers think through the implications of agreeing to or refusing a hybrid working request from a discrimination perspective.
Change to Employment Contract
Employers may also need to consider the fact that a change from workplace-based working to remote working, either from home or as part of a hybrid working arrangement, is likely to amount to a change to the terms and conditions of employment. Therefore, if the employer wishes to end or amend the hybrid arrangement this will amount to a change of contract requiring the employee’s consent.
Flexible Working
There is currently no automatic right for employees to work remotely. Employees with 26 weeks’ continuous service at the date the request is made can apply for “flexible working” arrangements. A request could involve changing the number of hours they work, the times they work or the location. Only one request may be made under the statutory scheme in any 12-month period. However, the Government is currently reviewing the flexible working arrangements with a view to removing the requirement for the 26 weeks requirement therefore making a right to request flexible working a day 1 right.
The legislation recognises that an employer may have entirely legitimate business reasons why it cannot accommodate a flexible working request, and there are currently eight specific grounds that an employer may rely on for rejecting a request which are also being reviewed by the Government. These are:
- The burden of additional costs.
- Detrimental effect on ability to meet customer demand.
- Inability to reorganise work among existing staff.
- Inability to recruit additional staff.
- Detrimental impact on quality.
- Detrimental impact on performance.
- Insufficiency of work during the periods the employee proposes to work.
- Planned structural changes.
However, it may be harder for employers to refuse flexible working requests for homeworking or hybrid working where the temporary arrangements that have applied during the COVID-19 pandemic have worked well although in many cases this will be a matter of opinion.
Practical Steps
If employers want to introduce hybrid working, they should:
- create a hybrid working policy;
- review and adapt any related policies or procedures; and
- consult with employees before implementing.
A hybrid working policy allows for such arrangements to apply on a discretionary basis, whereby staff are permitted to split their work time between home and the workplace, without the need for a formal statutory flexible working request to be made, if agreed with their line manager or HR.
Alec Colson is a Solicitor and Partner at Taylor Walton LLP, in Taylor Walton’s Employment team. Alec has specialised in Employment and Industrial Relations Law for over 20 years. taylorwalton.com
