04 June 2021

Lesley Grant sets out some points to bear in mind if you are considering implementing a hybrid model in your organisation post pandemic.

According to the Office for National Statistics, prior to the COVID-19 pandemic, only around 5% of the UK workforce worked mainly from home. This increased significantly in 2020 as a result of the Government’s mandates for people to remain at home.

A number of studies, including a YouGov Survey and CIPD research, indicate that after the pandemic, the majority of UK workers will want to continue to work from home at least some of the time. Likewise, in a poll by the BBC, nearly all of the 50 biggest UK employers (ranging from banks to retailers) have said that they do not plan to bring all staff back to the office full-time. Some 43 of those employers questioned said that they would welcome hybrid working (whereby working time is split between home and attending the workplace) with only four saying that they are keeping their options under review.

With a combination of home and hybrid working looking set to continue beyond the pandemic, here are some things to bear in mind if you are considering implementing a hybrid model in your organisation.

Any permanent change to a hybrid working model should be formalised in employment contracts to avoid any dubiety, rather than just allowing an informal arrangement to drift on. Check if your employment contracts have built-in flexibility already (i.e. a mobility clause) that allows you to change an employee’s place of work. Amendments to work locations, including a move to mostly home-working, must still be reasonable and justified, to avoid the employer breaching the implied term of trust and confidence, which could lead to constructive dismissal.

If there isn’t a mobility clause, you will need to communicate the proposed change to affected staff so that they are aware of what is happening and that it will represent a permanent change to their contract of employment. You should seek their agreement to the change (either directly or via collective bargaining) and ask them to confirm this in writing. Alternatively, if the request for hybrid working is from the employee and you are not certain if the proposed arrangement will work, you could agree to the hybrid arrangement on a trial basis.

If some (or all) refuse to accept the proposed change the best course of action is to dismiss and offer re-engagement on amended terms. This can still carry risk, including a discrimination risk if the reason for the employee rejecting the change relates to a protected characteristic such as sex or disability. Additionally, if there is a proposal to dismiss and re-engage 20 or more employees at one establishment within 90 days, collective consultation obligations will also be triggered.

Other key issues to consider include:

• Do any other contractual terms need to be varied? For example, will there be a requirement for the employee to attend the workplace on a set number of / particular days? Who is required to cover ongoing costs associated with working from home (such as broadband, heating, lighting and electricity etc)? Do working hours need to be amended to reflect new working arrangements such as working compressed hours or having flexible start/finish times?
• Do your policies or handbook need updating? Ensure your Homeworking Policy addresses how employees will be supervised, how the organisation and line managers will communicate with them and how performance and output will be monitored when working at home. Consider including new or amended examples of what amounts to misconduct or gross misconduct in contracts, policies or handbooks.
• Remind staff that they should continue to comply with your Sickness Absence Policy and reporting procedures when they are sick and unable to work.
• Consider how to approach disciplinary, grievance, performance and absence and consultation meetings. Traditionally this will likely have been in person, but what will your model be going forward?
• Who will provide IT or other equipment necessary for home working? This should be agreed and it is advisable to list any equipment supplied in the homeworking agreement, consent or policy. The provision of equipment could be a reasonable adjustment for some disabled employees and may be the safest option for those with existing health conditions or who are pregnant.
• Provide training and development for managers and staff to support successful hybrid working.
• Ensure data protection obligations are maintained and that employees using their own IT equipment are processing information in compliance with data protection principles. Remind employees about home security, confidential information, keeping passwords safe and shredding documents securely.
• Remember employers are responsible for an employee’s health, safety and welfare, even when working from home. Conduct risk assessments of all work activities carried out by employees working from home (including DSE, pregnancy and disability risk assessments).
• Support staff through good people management.
• Be mindful of employee wellbeing: consider implementing procedures to remain in direct contact with staff working from home and to recognise signs of stress and isolation as early as possible; have regular team meetings/contact between employees and line managers and clarify how employees can get assistance and guidance if they need it.
• Employers should continue to deal with flexible working requests within the statutory timeframes and in a reasonable manner.

Hybrid working won’t be a one size fits all model. For many organisations, this will require a significant culture shift, the establishment of new ways of working and the implementation of associated policies and practices. Some employers may want all staff to move to hybrid working, whereas others may be happy to have it as an option for those who want it.

This update contains general information only and does not constitute legal or other professional advice.

Please contact our Employment Team  should you require assistance in relation to any of the matters discussed.

Lesley Grant, Associate: ljg@bto.co.uk / 0141 221 8012