Hybrid Working – what employers should consider legally

Return to the workplace – legal considerations

Although the stay-at-home rules are no longer a legal requirement, guidance from the Government is clear that employees should continue to work from home where possible and it looks likely that this will continue to be the case until further restrictions are eased.

As businesses begin to prepare to bring staff back, whether that be full time or on a hybrid basis, there are a number of things that they should be doing in order to bring their staff back safely. It is vital that risk assessments are up to date, that plans are in place to maintain social distancing and that any guidance and policies are communicated clearly to staff to allow for a sensible transition back to the office.

Hybrid Working – Individual Approach or Company Wide

Organisations will need to give careful consideration to the contractual implications of hybrid working. In practice, it may be possible to implement changes through an informal engagement process and rollout of a non-contractual hybrid policy without the need for a more formal process. However, whilst it is true that a large majority of employees seem to be in favour of flexible working models, this view is not universal. Employers should be aware of the risk of challenge where changes are imposed and identify any potential risks, and where possible, mitigate them.

If the request for hybrid working is employee driven, then the organisation may wish for them to make a formal request through a flexible working policy. Flexible and remote working are not new concepts and before the pandemic, arrangements were generally dealt with on an individual basis through statutory flexible working requests. If an organisation opts to use this process, rather than a more informal policy, where the request is accepted this would then amount to a formal change in the employees terms of employment.

If a business is considering a company-wide approach and it is the organisation themselves that is looking to impose hybrid working then they will need to seek agreement first.

If they don’t have agreement, then the organisation would need to undertake a formal consultation and put forward a sound business rationale for wanting to adopt these changes.

If staff are against the changes then the organisation would need to comply with the requirements for collective consultation (if 20 or more staff disagree) or consult individually with staff (less than 20) before considering redundancy or other options.

There are legal risks involved in this scenario, including claims for breach of contract and unfair dismissal, so it is wise for employers to seek legal advice before pushing through any major changes without consent.

Some other important things to consider when looking at a hybrid approach;

Health and Safety

It is important to remember that employers will still retain health and safety responsibilities for staff even when they are working from home, whether driven by employee choice or by compulsion.

If the changes to work from home are employer driven and permanent then employers may need to fund equipment for use by the employee. Workstation assessments should also be carried out, if not done so already, to ensure that desks are properly set up and employers must act upon any recommendations following such assessments.

Confidentiality, Data Protection and GDPR

To mitigate the risk of data breaches, employers should think carefully about IT security, maintaining confidentiality and the appropriate storage and destruction of any printed documents. This is particularly prevalent when working in a shared space and any policies should be communicated to staff.

Staff Wellbeing

Employers should advise employees that whilst working from home it is their responsibility to regulate their working time and take regular breaks. They may also wish to consider offering wellbeing support to those anxious about returning to the workplace, as well as those working from home as they may feel isolated.

“Going forwards it seems like that most employees will expect at least some degree of flexibility in their working arrangements, if their position allows. Hybrid working is likely to be here to stay so employers are advised to consider their stance on ‘hybrid working’ and to put appropriate policies and procedures in place”.

For help on putting together a hybrid policy or with any other aspect of employment law please contact Daniel Wilde on wilded@hevans.com or call 01633 244233.