The work from home advice changed in England on 19 July 2021 when restrictions were lifted with the government urging a “gradual return to work”. In Scotland, the government is continuing to encourage employers to support home working, or flexible working, where possible and appropriate.
As a result of the experience of home working during the pandemic, it is likely that many employers will allow employees a far greater level of flexibility and freedom around where staff work in future. The term “hybrid working” – which most people hadn’t heard of a year ago – is now embraced by many businesses. Some well-known organisations have announced they will be adopting a policy of mixing office and working from other locations, such as at home, in various proportions going forward, as well as offering flexibility on working hours.
The attractiveness of hybrid working is widely accepted; better work-life balance as employees commute less and save money and, to some extent, can build their personal lives around work, a workforce that is happier and more productive and a reduction in expensive city-centre rents as less office space needed – it looks like a win-win for everyone!
But there are some valid cultural concerns: how effectively will less experienced employees learn and build their professional networks without face-to-face contact, how well will companies be able to maintain a business identity without physical interaction and will the creativity that can spring from being in the same physical space be lost? Employers will need to monitor how hybrid working affects the workforce in practice to answers these questions.
While it won’t be for every business, employers who decide to adopt the hybrid model need to plan carefully and assess the legal risks. Here are our top 5 issues:
1. Deciding the details
How will you frame your policy? For example, will people be able to decide when and where they work themselves or will they be told they must do a minimum number of days/hours in the office or at home? If so, how will this be recorded and monitored or will you just trust people? Does home working only mean working where you live or is it ok to work from another public location such as a café? Whatever you decide, will this policy apply across the whole organisation to everyone or will there be any exceptions? Consider if there are any indirect discrimination risks with your policy? Acas has a good collection of resources on hybrid working, including creating a hybrid working policy.
2. Changes to employment contracts
Are you confident enough to adopt hybrid working permanently now or, do you want to impose a trial period? The position should be made clear to staff at the outset. If you are set on a permanent change now you will need to amend contracts of employment but, this must be done by agreement so effective communication with the workforce will be key. Any change to terms and conditions must be notified in writing to employees no later than one month after the change takes effect.
3. There will be knock-on effects
A change to hybrid working is likely to have knock-on effects across the business so review HR policies and make changes where necessary. For example, to the expenses policy – will staff be able to claim for office supplies they use at home, will the employer contribute to heating, electricity, telephone or broadband costs? Employment contracts for new hires will need to be revised to reflect new arrangements. Employers should consider if they need additional protections on the termination of employment, for example the right to inspect any personal equipment which has been used for work purposes to ensure all data has been removed? Performance management procedures may need to be adapted.
4. Data protection headaches
Hybrid working throws up significant data protection and confidentiality concerns. Issues around security which could be addressed effectively within a single office space become much harder to keep on top of when people are working in multiple locations and in private spaces. Significant fines can now be imposed for data protection breaches so this is not something that should be left to chance. As a minimum employers will need to revise their training on data protection to cover home working. This should be communicated effectively so everyone understands what is expected of them.
5. Don’t forget about health and safety
Employers have the same legal obligations for the health, safety and welfare of workers working from home as for those in the workplace. Risk assessments need to be carried out to ensure everyone has an adequate physical environment – for example, lighting, seating, space, etc. But, don’t forget that home working may also carry mental health risks relating to isolation, stress and anxiety and these should be monitored and addressed where reasonably practicable.
At LegalEdge we’re helping our clients navigate their way through changes to the workplace as a result of Covid-19. Our experience suggests that the key is understanding what your business needs when it comes to physical team presence, recognising staff concerns so these can be addressed up front and adequate planning to allow time for adjustment.
Whether you need help getting your staff back to the office or want to put in place a new hybrid working model, we can help. Please get in touch if you have any questions or need help implementing your changes.