Hybrid working – the best of both worlds?

Boris Johnson said in his speech to the Conservative Party conference that ‘we will and must see people back in the office’ since ‘a productive workforce needs that spur that only comes with face to face meetings and water cooler gossip’. Whilst there is merit to this argument, there is a counter-argument that working remotely makes for a productive and content workforce, and improvements in technology have enabled successful home working in many cases. Employers might also save significant costs, for example from being able to operate from smaller office spaces. Hybrid working – a mix of office and home working, therefore could be a solution to maximise the benefits of both. ACAS has produced guidance on hybrid working and this article covers the main points for employers to consider.

Considering hybrid working

Employers should consider which roles are suitable for hybrid working and to what extent. For example, senior employees could potentially work from home for much of the week, whereas junior employees would benefit from being in the office and learning from others. A difficulty could arise though, if all of the senior employees are working from home, as who will be there to train junior staff? Ensuring that hybrid workers have a schedule that benefits everyone is therefore key. Employers should also be aware that some people prefer to be in the office full-time, perhaps because of limited opportunities to interact with people outside of work, or because their home environment is unsuitable for working from home.

What should an employer do?

Employers wishing to introduce hybrid working should consult with their employees before making any significant change to their terms and conditions of employment, such as their place of work.

If contractual changes are not agreed, it may be possible for them to be imposed anyway, but this might lead to resignations and claims for constructive dismissal (from employees with at least two years’ service). Alternatively, an employer could dismiss all employees by giving them their contractual notice and then offering fresh employment on revised terms, but this is risky and those dismissed could bring unfair dismissal claims, (if they have at least two years’ service). An employer may also be under a duty to collectively consult on contractual changes if 20 or more employees are affected, and the Employment Tribunal can award up to 90 days’ gross pay per employee for failure to consult. There are lots of potential problems so it is always best to take advice – please contact us.

Creating a hybrid working policy is a good idea to ensure it is clear how you expect things to work in practice, and it may also be wise to make hybrid working arrangements subject to an agreed initial trial period.

What if an employee requests hybrid working?

If an employee with over 26 weeks’ service makes a written request to change their terms and conditions to enable hybrid working, and they have not already made a request in the previous 12 months, then their employer should treat this as a flexible working request. Our previous article provides information on the current law around such requests.

For disabled employees, a request for hybrid working might also amount to a request for a reasonable adjustment. This should be given careful consideration to avoid the risk of a disability discrimination claim.

Employers also need to ensure that they do not treat employees with a protected characteristic less favourably when dealing with hybrid working requests. ACAS provides the example of a male employee who has children and is granted hybrid working, whereas their female colleague is refused it because of fears that their children might distract them.

Practical considerations

We recommend that policies on hybrid working include details of how to introduce, set up and support employees in their new hybrid working arrangements. For example:

• who will provide (or renew) equipment, how it will be set up and how cybersecurity will be maintained;
• safe working measures including a risk assessment of the home;
• what support is available to the employee and how can it be accessed remotely;
• health, safety and wellbeing; and
• performance management.

Wherever an employee is working from, they should be treated fairly. Employees on a hybrid working pattern should be given the same opportunities for training, development and promotion as those who are fully based at the workplace.

The best of both worlds?

Whilst the PM’s motive for wanting people to return to the office might be more down to the knock-on boost to the economy than the benefits of water cooler gossip, there are many employers and employees who would like to return at least some of the time. Hybrid working can offer that solution, and with a properly thought out and regularly reviewed policy in place, many employers will be able to facilitate this. Our team can assist employers with their policies and with adapting to this new way of working.