Employment Lawyer and Senior Associate LCF Law
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What Does Hybrid Working Mean For Employment Law?

5th Nov 2021
Employment Lawyer and Senior Associate LCF Law
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With many large employers now formally granting staff the ability to work where and how they want; hybrid working has quickly become the new normal for many.

Other employers are following suit and employment lawyers are busy supporting them with new flexible / hybrid working policies, but what are the key points to consider?

Health and Safety

First off, employers still retain some health and safety responsibilities when staff are working from home.

Matters such as workstation assessments can be carried out using online tools to ensure desks are properly set up and employers must act upon any recommendations.

Where electrical equipment is provided – such as a computer – employers must ensure it is safe for use. It is sensible to stipulate that one condition of being allowed to work from home is that equipment must be returned upon request for appropriate PAT testing, and that failure to do so may lead to home working being suspended.

Employees have different reactions to returning to the workplace. Whilst some welcome the chance to go back to the office, others are more reluctant and both sides can face anxieties. Employers must keep the mental health of their people in focus, both in the immediate return period and the future.

However, with employees working from home, it can be a challenge for employers to recognise and assist with mental health concerns. Employees may become disengaged, find themselves working longer hours or coming under increasing levels of stress, which employers may not be aware of.

It is vital that home working policies take account of these difficulties and employers maintain strong chains of communication, regardless of physical distance.

Contractual terms

It’s important to consider whether changes to working arrangements become a permanent contractual change, or a more ‘fluid’ and discretionary measure. Even where changes are offered only on a discretionary basis, they could still become implied terms of the contract because of ‘custom and practice’. If the changes become contractual entitlements, it could make it more difficult to make further changes in the future. Employers should therefore carefully consider any changes to ensure they don’t eventually become unworkable.

Employees need to be aware where changes are made on a discretionary basis and understand why they could be withdrawn – such as where there are performance concerns, or where the arrangement is abused.  

Other leave

Policies must be clear that working from home is not to be used as an alternative to other leave arrangements, where these are more appropriate. For example, employees should be reminded that if they are ill, they should take the necessary time to rest and recuperate. Whilst some people may be able to continue working from home whilst otherwise unable to attend work, if someone is genuinely unwell, they should follow normal sickness absence procedures.

In addition, it’s worth reminding staff that home working is not an alternative to having appropriate childcare in place. Employees should have appropriate arrangements in place for childcare – or other caring responsibilities – regardless of the location in which they are working.

That said, there may be times where employees can work from home whilst also carrying out caring responsibilities temporarily; for example if the family was required to isolate following positive covid tests, or where a child is unexpectedly sent home from school due to ill health. However, if this is not possible due to the nature of the role, or the age of the children, the employee might need to take an alternative form of leave, such as sick leave, time off for dependants or parental leave.  

Monitoring

One question troubling many employers is how they can monitor employee performance when they are working from home? Where there are online systems such as time recording, or ways of monitoring output such as number of calls made, or pieces of work produced, this isn’t always the case and there are many roles where this is not possible. Even where time spent working can be monitored, it can still be difficult to assess quality of work and there may be concerns over effective supervision and potential claims which may arise if work is not carried out to the required standard.

Employers should therefore consider these issues for all roles when determining whether, and to what extent, they can be carried out from home.

Where people have been at home throughout lockdown, it can be more difficult to justify refusing home working – at least on a part time basis – unless an employer can evidence problems it has caused over the last year.

This may be difficult where the problem is intangible, such as team morale, or where it’s a case of showing that someone has not achieved the levels of competence which would have been expected, had they been in the workplace. However, these matters should be considered, and evidence gathered where possible, if employers plan to insist on a return to the office and are likely to face resistance.

When it comes to monitoring telephone, email and internet usage, the same rules apply whether employees are in the office or at home. Policies should be clear as to what monitoring takes place and the reasons for it, and monitoring should not go further than is necessary. Employees need to be aware that they can’t expect privacy in email communications if monitoring is to take place and should be reminded of acceptable use policies regarding work systems and equipment.

Security and data protection

The same data protection requirements apply, whether staff are in the office or at home. It is sensible to review policies and procedures and to ensure that strict levels of data security can be adhered to, regardless of the working environment.

Points employers should consider include:

  • Secure storage arrangements should be in place for any hard copy documents taken home, particularly where these contain sensitive personal data.
  • All computer systems should be password protected, left locked when unattended and should only be accessed by the employee.
  • Confidential information should be disposed of in the correct way, including arrangements for secure destruction where required.
  • Employees should be reminded of the requirement and process to report any data breach whether in the workplace or at home.
  • Any additional monitoring which is to be carried out by employers may necessitate an update to an employer’s data protection policy / employee privacy notice.

This is by no means an exhaustive list, and it would be wise for employers to review their internal policies and procedures to ensure that they remain fit for purpose in this ‘new normal’. 

Conclusion

It is likely that most employees will expect at least some degree of flexibility in their working arrangements, if the position allows. Hybrid working is here to stay and given the potential benefits, as well as the need to attract and retain staff, employers are well advised to consider their personal stance on hybrid working arrangements and put appropriate policies and procedures in place.

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