"Hybrid working" has become a buzz phrase and an attractive solution for employers in various sectors. Nearly all of the 50 biggest UK employers have said that they plan to introduce some form of hybrid working across their workforce. This means that employees will adopt a working pattern including both office and remote working across the working week. For employers, hybrid working can be a "win / win" – employees appreciate increased flexibility, and employers are able to reduce their office footprint and save significant costs.
Flexible and remote working are, of course, not new concepts, and about 35% of employers offered some form of flexible working to their workforce prior to the onset of the COVID-19 pandemic. However, before the pandemic, arrangements were generally dealt with on an individual basis, through statutory flexible working requests or informal arrangements, rather than as sweeping policy across the office. Whilst many employees are likely to embrace flexible working, employers do need to be mindful that there is a big difference, from an employee's point of view, between offering increased flexibility and effectively mandating part-time home-working (whether through express policies, or by reducing office space so that it is simply not possible for employees to come into the office). In the latter scenario, strictly, employers will need to vary their employees' contracts to reflect such changes.
In practice, it may be possible to implement change through informal engagement and policy rollouts, rather than seeking consent for contract amendments through a more formal consultation process. However, employers should be aware of the risk of challenge where changes are imposed, and should not plan on the assumption that employees will all wish to adopt more flexible working models. While it is true that a majority of employees seem (currently at least) to be in favour of home-working where that is possible, the view is not universal. Not all employees will benefit from home-working arrangements, and it is important to realise that members of particular groups may be particularly affected by an attempt to impose a hybrid working model. For example, in high cost areas such as London, younger workers are more likely than older workers to be living in shared accommodation, creating challenges around home-working. Employees from ethnic minority backgrounds are more likely to live in multi-generational households, which will present its own difficulties. Employees with certain mental health conditions may be particularly impacted by the isolation of working alone at home.
To avoid the risk of claims, including indirect discrimination claims or constructive dismissal claims, any hybrid working policy (particularly a policy that envisages that all employees will take up the option of working from home) should be messaged carefully, and employers should invite dialogue and engage with employees' concerns. To discuss your options in relation to hybrid working, please reach out to a member of the team.
With thanks to Shafagh Daneshfar, trainee solicitor, who co-authored this article.
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