Hello, and welcome to our latest employment video for 2021. My name’s Paul Griffin and I’m Head of the Norton Rose Fulbright Employment Team in London.
There’s no doubt that the move to home working, as a result of the Covid-19 pandemic, has triggered a shift in the way we work. As employers plan the reopening of their workplaces, many are moving towards a hybrid-working model, where employees split their time between working in the office and working remotely.
While we’ve previously looked at issues regarding working from home, in today’s video I thought it would be useful to highlight the specific issues where employers adopt this hybrid model.
Introducing hybrid working
Before introducing a hybrid-working model, an employer should consult with their employees on the proposed changes and how they will be implemented. There will be initial matters for an employer to consider, such as whether hybrid working will be mandatory for all employees, and how it will tie in with the existing flexible working arrangements.
It’s also necessary to consider whether there will need to be changes to an employee’s contract of employment – does the existing place of work clause provide flexibility to allow for a hybrid workplace? If not, then the employer will need to agree amendments to the terms of employment and consider the process to be adopted for getting agreement to the changes.
Establishing the workplace
The hybrid model allows employees to work from different places in addition to the office. Thought needs to be given as to whether the employer will make it mandatory for a certain number of days per week that employees are expected to work in the office, as compared to the number of days that can be worked remotely. It’s a good idea to have some degree of flexibility as different levels of employees may benefit from being in the workplace and working with others.
Employers may want to specify the days that an employee should attend the office, particularly if they no longer have space for the whole workforce to be in the office at the same time, while maintaining a Covid secure workplace. While employers may think that employees would like flexibility to choose the days in the office, in fact they may prefer certainty as this can impact on their other responsibilities, such as childcare. It should be clear from the outset the circumstances in which the employer can require the employee to attend the workplace, such as for client meetings, team meetings or performance appraisals and the notice that is required to be given to the employee to attend.
Employers may want to provide some limitation on where an employee can work when not working in the office. So, an employer may want to make it clear that employees can’t work in public places with unsecure internet, particularly where there is confidential data involved.
Many employees are seeing this as an opportunity to work oversees for a period of time. But employees should notify an employer of any new work location and an employer should have the right to refuse to allow employees to work overseas, as there may be tax, immigration and regulatory issues in working from a different jurisdiction.
Remuneration and expenses
Some employers are also reviewing the remuneration and benefits offered under the new hybrid model. Employees may find that commuting costs, company cars or catering vouchers are adjusted, as well as adjustments for lower cost of living. This has to be balanced against the increased costs incurred by employees in working from home. Obviously any change to remuneration and benefits must be with the consent of the employee.
Employers have an obligation to provide their employees with the tools and equipment needed to perform their work, such as a laptop and mobile phone. Employees regularly working from home may require additional equipment and the question arises as to how far an employer must go in providing for this– does it need to pay for increased use of wifi, printing costs or an additional ergonomic chair? Currently its up to the employer to decide what they want to pay for, but employers need to consider this in maintaining good employee relations.
The other point to bear in mind when looking at costs is the obligation on employers to carry out reasonable adjustments for employees who are disabled. This means that there may be additional costs incurred by the employer in providing reasonable adjustments both in the office and at home.
Two tier workforce
One of the main issues with hybrid working is that employers need to be careful to avoid a two-tier workforce. You will know yourselves that it is easy to treat those who are working in the office differently to those working from home. So, you may be more likely to give work on a project to those who you physically see on a more regular basis. This can also impact on how you manage an employee’s performance. Its therefore good practice to ensure that all employees attend both at the workplace and can work from home. Applying any differences in treatment could result in claims for indirect discrimination, unless any difference can be objectively justified.
Hybrid working can also have an impact on workplace culture. Team leaders will need to explore new ways of bringing their team together and to ensure all employees feel connected to maintain a coherent workforce.
Hybrid working policy
Finally, employers will want to think about introducing a hybrid working policy which can be a standalone policy, or can be included in an existing flexible working policy. The policy contain some of the information that I have mentioned: Who is eligible for hybrid working? Which days are employees required to attend the office? What limits are to be imposed on employees working remotely? Guidelines should also be included on what is expected of employees while working remotely, including how performance will be monitored and measured.
This is just a summary of some of the key issues that employers should consider. We are considering this in more detail at our Employment webinar on June 17 so, if you are interested in hearing more about these issues then please check our website or contact us for further details.
In this video Paul Griffin considers the move to a new hybrid workplace and the employment law implications for employers, as well as practical points for employers to consider.