As employers adapt to the post-pandemic normal, traditional working arrangements are being set aside in favour of greater flexibility in working hours and locations.
Hybrid working in particular is becoming increasingly common in UK workplaces.
Introducing hybrid working within an organisation, as with any change or variation in working terms or conditions, brings legal considerations which must be assessed and addressed.
Below we discuss the employment law implications of implementing hybrid working, including what hybrid working arrangements could look like, how to deal with hybrid working requests and the importance of having a dedicated hybrid working policy.
What is hybrid working?
Now that the government mandate to work from home has been removed, employers are starting to plan for a gradual return to the workplace. At the same time, for many employers whose staff have worked remotely throughout lockdown, it’s anticipated that a significant number of employees will continue to want to work from home, either some or all of the time.
For those employees who are seeking a balance between working from home and going back to their normal place of work, this is known as hybrid working. In many cases, having enjoyed the benefits of working remotely, including less commuting time and a better work-life balance, this has created new employee expectations and desires. This means that many employees are unlikely to want to return to commuting five days a week. They may also have legitimate health and safety concerns about returning to the office on a full-time basis.
Employers should therefore get ready for an influx of hybrid working requests from staff who have become accustomed to the benefits of home-working. At the same time, employers can use this increased demand as an opportunity to harness the benefits of hybrid working for their business. These benefits can include improved employee wellbeing and increased levels of employee engagement, as well as reduced absenteeism, better talent acquisition and retention rates, not to mention financial savings on office space and facilities.
However, careful consideration must be given by the employer as to how they might go about meeting unprecedented employee demand for hybrid working and what measures will need to be put in place in order for this to be effective. For many organisations, the introduction of hybrid working will not only require a significant culture shift, but the introduction of a new workplace policy and practices to manage this type of flexible working on a wide-scale basis.
Dealing with hybrid working requests
Currently in the UK, all employees have the statutory right to request flexible working, including hybrid working, as long as they’ve worked for the same employer for at least 26 weeks. Employers do not have to accept the employee’s request, even if such an arrangement is possible, but they must handle the request in a ‘reasonable manner’.
Handling hybrid working requests in a reasonable manner includes looking at the benefits of the requested change in working conditions for both the employee and the business, weighing these against any adverse business impact of implementing the change. Provided the decision doesn’t unlawfully discriminate against the employee, an employer can refuse a request if they have a good business reason for this, for example, additional costs that could damage the business, a detrimental impact on quality and performance, an inability to meet customer demand, or an inability to reorganise work amongst existing employees or to recruit new staff.
Employees do not have a statutory right to appeal any refusal of a hybrid working request, but offering an appeals process will help the employer to demonstrate that they handled the request in a reasonable manner. If a rejected application results in a dispute, the employee may raise a formal grievance. This could also result in a complaint to an employment tribunal.
Employees cannot complain to a tribunal simply because their flexible working request has been rejected, but if the request was not handled in a reasonable manner — including failing to assess the advantages and disadvantages of the request — the tribunal could order the employer to reconsider the application and pay the employee compensation.
Employers should therefore carefully consider any request for hybrid working and the grounds for refusing any request, documenting in detail the decision-making process, especially as any refusal may be harder to justify if the employee has already worked effectively from home during lockdown. Organisations who do not support hybrid working requests in the current climate, or any other form of flexible working, not only expose themselves to a risk of costly legal proceedings, but reduced employee engagement, increased employee turnover and limitations on the ability to attract talent in the future.
Employer’s should also bear in mind that the government is consulting on making flexible working the default. If the current proposals for reform come into force, this would enshrine the right to work flexibly from the first day of employment in most cases. This would essentially give employers a legal responsibility to accommodate flexible working, including hybrid working, unless they could show that the arrangement wasn’t workable.
Legal implications of adopting hybrid working
Many employers will now be well accustomed to the practice of remote working, and the benefits that this brings to both their business and the employee, where the opportunity to keep their staff working from home, at least some of the time, may be welcomed.
However, the legal risks around making hybrid working the ‘new normal’ are potentially complex, not least when it comes to the contractual implications of this arrangement — as well as ensuring the health and wellbeing of the hybrid employee, plus the provision of equal access to opportunities for promotion, transfer, training and any other workplace benefit.
Employment contract terms
Where an employee makes a formal request for hybrid working, and the request is accepted, this will amount to a formal change to the terms and conditions of their employment.
In the short-term, hybrid working can be undertaken on an informal basis without the need to introduce any contractual changes, although employers that agree to hybrid working on a discretionary and non-contractual basis should bear in mind that the working arrangement may, over time, become an implied term of the employment contract.
If hybrid working is to be treated as a permanent change to an employee’s working conditions, the employer should write to the employee with a statement of the agreed changes, together with a start date for the new arrangement. Written notification should be sent as soon as possible, and no later than 28 days after the request has been approved and changes agreed.
Health & safety
Once a hybrid working arrangement has been approved, the employer remains under a statutory duty to ensure, so far as is reasonably practicable, the health, safety and welfare of the hybrid employee. The employer is also under a duty to make a suitable and sufficient assessment of the risks to the health and safety of the employee to which they are exposed whilst at work, even where that work is partly performed at home.
In addition to any COVID-19 workplace risk assessment, the employer should assess any risks to the employee associated with working remotely, and take measures to eliminate or control these risks. This could include risks arising from not having a safe and suitable workspace at home, or risks to the employee’s mental wellbeing, such as working excessive hours.
It’s incumbent upon the employer to ensure the health and wellbeing of the hybrid employee, both in and out of the office, including taking all reasonable steps to minimise any risk of work-related stress and employee burnout. This means the employer should take care to monitor and review the new working arrangement, where some employees may find it difficult to switch off and set boundaries when working remotely. Employers are also under a duty to ensure that the employee is given sufficient daily and weekly rest breaks, and does not work more than the maximum weekly working time limit permitted by law.
Inclusion & fairness
If hybrid working is adopted on a long-term basis, there may be a risk of divergence between how employees in the workplace and those working remotely are treated by the employer. This is because working from home, by virtue of the fact that the hybrid employee is not always present and available in their normal place of work, can have a negative impact on an employee’s chances of promotion and other benefits that they receive.
By law, an employer must not discriminate against an employee, not only as to the terms of their employment, but also in the way that the employer affords the employee access to opportunities for promotion, transfer or training. Specifically, there is a real risk of indirect discrimination if an employer applies a provision, criterion or practice that puts an employee with a protected characteristic at a particular disadvantage when compared to others.
Employers must therefore ensure that issues in relation to inclusion and fairness are not compounded by hybrid working, where reward and recognition systems must not be biased towards those spending more time in the office, or create an unequal playing field in terms of career development. Any policy that inadvertently discriminates against those from protected groups, such as women who are more likely to want to work from home because of childcare responsibilities, could expose the employer to a claim for unlawful discrimination.
Hybrid working policy
For employers looking to harness the benefits of hybrid working in the long-term, a hybrid working policy can help to manage and minimise any legal risks involved. There is no single or standard way to implement a hybrid working policy, and its exact form is likely to vary, depending on the nature of the business and the number of employees this is likely to affect.
However, the most important steps when introducing a hybrid working policy should include:
- Deciding on the organisation’s overall approach to hybrid working. Consideration should be given as to who is eligible and when the right to hybrid working arises, for example, from day one of employment or after 26 weeks. The employer may also want to consider whether new roles should be advertised as open to hybrid working applications.
- Engaging managers and HR personnel, as well as employees and employee representatives, such as any recognised trade union, before implementing a hybrid working policy. This will provide opportunities to ask questions and raise concerns.
- Developing a communication plan to share the hybrid working policy with all staff, including information on how to request a hybrid working arrangement.
- Providing training and development for managers and HR personnel to deal with hybrid working requests and to support approved hybrid working arrangements.
- Planning and preparing for the organisational implications of hybrid working on matters such as technology, employee wellbeing, inclusion and performance management.
- Supporting effective team building, communication and cohesion in hybrid teams.
Can hybrid working be imposed on employees?
Hybrid working, where this working arrangement differs from that set out in an employee’s contract of employment, would constitute a change to their normal working terms and conditions. For this, agreement would need to be reached between the employer and employee. If the employer is looking to put in place a hybrid working arrangement, but the employee refuses to a change in their contractual terms, any attempt to unilaterally vary these terms would amount to a breach of contract, even where such changes are only temporary.
In some cases, the employment contract may contain a flexibility clause, providing the employer with some scope to change the employee’s place of work or working patterns. Still, care should be taken as such clauses can only be used in a reasonable way. Care should also be taken not to discriminate against any employee with a protected characteristic, for example, female employees may be unable to change their working hours for childcare reasons.
There are several ways that an employment contract may be changed, although the most effective way is usually by agreement. If the employer is looking to introduce hybrid working on a wide-scale basis, they should consult with employees, together with any recognised trade union or employee representative group. In this way, feedback can be sought on any potential obstacles that need to be overcome with a view to reaching mutually agreeable terms.
In the absence of individual or collective agreement, the employer could dismiss and re-engage the same employee under a new contract of employment, but this should only be used as a last resort, and only after consulting the employee ‘and’ seeking expert legal advice.
Hybrid working FAQs
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Legal disclaimer
The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.
Author
Anne Morris is the founder and Managing Director of DavidsonMorris. A highly experienced lawyer, she is recognised by Chambers & Partners and the Legal 500 UK as a trusted adviser to multinationals, large corporates and SMEs, delivering strategic immigration and global mobility advice. Anne is also an active commentator on UK immigration and HR matters.
