Hybrid Working

Historically, the number of workers in the UK working exclusively at home has been relatively low but as a result of the COVID-19 pandemic, this has changed significantly and working from home is now the “norm” for many of us.

Recent surveys have indicated that there is little appetite among both workers and employers to return to the workplace-based model that was in place before 2020 and research shows that a more flexible approach to working practice is here to stay.
A number of organisations, including PwC and KPMG, have already publicly announced a hybrid working model for all UK staff, and it is inevitable that others will follow suit.

However, whilst the concept of flexible working has been around now for a number of years, hybrid working (or “agile working” as it is often referred to) is a relatively new concept and one that employers across the UK have grappled with, and are continuing to grapple with, now that Government imposed restrictions regarding working from home have eased, and offices and workplaces are opening up again.
But what is hybrid working and how does it differ, if at all, from flexible working? Are there positives to hybrid working or do the negatives outweigh them? What do employers need to be aware of when considering, proposing and agreeing to homeworking or hybrid working and what steps should employers be taking?

Hybrid Working vs Flexible Working

Hybrid working is essentially a form of flexible working which allows workers to work at a specified workplace (e.g. an office) and home (or other remote location). It is not legally defined and so businesses can exercise a great deal of discretion when it comes to implementing hybrid working. There are no prescribed processes to be followed and no statutory provisions governing it.

Flexible working on the other hand is governed by statute and has been around for a number of years. Unlike hybrid working, which is generally implemented by the employer, flexible working is employee-led in that employees who wish to work flexibly, have the right to request to do so and have the right for the request to be considered (in accordance with a prescribed procedure) by their employer. It is not, contrary to many employees’ beliefs, an absolute right to work flexibly and employers have a number of prescribed grounds upon which a request can be refused. Typical requests include requests to:

• work reduced hours or alternative working patterns (i.e. earlier or later start and finish times);
• work from home (either in part or in full);
• work during term-time only;
• work compacted or annualised hours; or
• job share with another employee.

The right to request to work flexibly is not (as it currently stands) open to all; there are eligibility criteria[1].

[1] The Government has recently announced a proposal to introduce the right for flexible working to be available to all and from the first day of employment.

Hybrid Working: The Advantages and Disadvantages

Before considering implementing hybrid working, businesses need to think very carefully about the advantages and disadvantages of doing so, both from the employers’ and the employees’ perspectives and factor these into their proposals and into any policies, whether existing or new. Just because hybrid working is right for one business does not mean it is right for all.

From the employers’ perspective:

From the employees’ perspective:

In weighing these up, businesses need to think about the disadvantages that might apply to them and how they will manage these going forwards to hopefully reduce the negative impact of hybrid working arrangements.

What do businesses need to think about?

Risk of a two-tier system. Is the business able to offer hybrid working to all staff? Take, for example, an office-based employer. It is likely that (perhaps with some exceptions in relation to operations staff such as cleaning and catering) almost all staff would be able to participate in the scheme. Compare this to a manufacturing employer which may have site-based staff as well as office-based staff. In this case, the employer may only be able to offer hybrid working to the office-based staff which then could create two-tier system and create an “us and them” culture.

Workspace requirements. Is hybrid working a “need” rather than a “nice to have”? Does the business have sufficient capacity to insist on all employees returning to the office or workplace or does it need to ask employees to return on a reduced basis?

Health and safety. Health and safety obligations extend to physical and mental health and to all workplaces including the employee’s home if they are working there. Businesses will therefore need to think about how they will undertake risk assessments and comply with their obligations in respect of employees working remotely. Lack of appropriate equipment or a suitable working environment may also give rise to health issues for hybrid workers. Businesses will therefore need to consider providing equipment and/or making a contribution towards a worker’s costs in setting themselves up from home.

Discrimination issues. Be mindful of the potential discriminatory issues that could arise:

• avoid generalising or making assumptions. For example, assuming that a wheelchair user might prefer to work from home to avoid public transport when in fact, the employee is worried about being isolated and would prefer to come into the office;
• consider whether working from home is a reasonable adjustment in respect of a disabled employee (particularly given the success (in most cases) of working from home during the pandemic); and
• consider whether insisting on remote working will indirectly discriminate against one or more groups of employees. For example, younger workers may be more likely to rent their home which may mean they have less space for a safe working environment.

Tax implications. Consider the possible tax implications, for example:

• the provision or reimbursement of homeworking equipment and expenses;
• determining an individual’s permanent workplace(s) and the tax treatment of travel expenses;
• any changes to tax-efficient benefits, such as cycle-to-work schemes.

Workplace testing and vaccination. Employers can introduce regular workplace testing and this may be helpful in alleviating staff concerns about returning to the workplace. Testing is of course voluntary and employers need to meet their data protection obligation in respect of any information it processes about testing and test results. But what about vaccinations? Can an employer insist on employees being double vaccinated before returning to the office? This will very much depend on the reasons for doing so and the justification of those reasons.

Confidentiality and data protection. Remind employees of their obligations in respect of confidential information and data protection. Introduce appropriate safeguards, if necessary. Policies may need to be checked to ensure they cover employees working remotely and appropriate measures should be put in place to ensure data security.

Being on call and switching off. This is always a difficult issue as there is often a blurring of lines between work and home life which can lead to stress and burnout. One way of managing the risk is by putting a restriction on accessing computers and emails during night-time hours. However, this is not always the answer and is another example of “one size does not fit all”. For example, some employees may prefer to take a break during the day and work in the evening instead.

Practical Steps: How do you implement a hybrid working policy?

Investigate what hybrid working is likely to mean for the business and how it will impact your different sites, roles and levels of seniority of your staff (including both full-time and part-time).

Carry out staff surveys and consultation to find out what has worked well and what has not, and what challenges or difficulties employees have experienced.
Experiment with different models of hybrid working before establishing any permanent, long-term changes. Do not be afraid of trialling hybrid working!

Decide upon a strategy and develop a policy to reflect it. Ensure managers (who will essentially be on the ground managing the policy on a day-to-day basis) understand it and can manage it effectively.

Consider the impact on the employment contract and consult and (ideally) agree on changes with employees. For example, changes might need to be made to terms dealing with:

• place of work;
• hours of work;
• benefits and expenses;
• confidentiality; and
• post-termination restrictions.

Training and development for managers and staff dealing with matters such as:

• managing requests for hybrid or flexible working;
• implementing hybrid working;
• managing staff remotely;
• communicating effectively;
• managing performance;
• effective induction of new staff and supervision or training of junior or newly promoted staff;

Put in place systems to monitor the impact of the new working practices, e.g. look out for disparate impact on protected groups.

Review working practices and introduce policies relating to hybrid working itself and review and update existing policies.  Regularly review working practices and policies and don’t be afraid of asking employees for feedback.