Hybrid Working – Key Considerations for Employers

From 31 January 2022, the Scottish Government is encouraging employers to (re)consider the implementation of a “hybrid approach” to working, with workers spending some time in the office and some time at home where that can be done safely.

Many employers had already implemented (or at least considered implementing) a hybrid working model prior to the outbreak of the Omicron variant of COVID-19. We discussed the issue of hybrid working in an earlier blog on 4 June 2021 Hybrid Working – An Employer’s Guide

This blog sets out the latest Government guidance and provides a refresher on the key employment law issues employers should consider when implementing a hybrid working model.

Updated government guidance

The Government Guidance on Safer Businesses and Workplaces was updated on 28 January 2021. It states that employers should work with their employees to consider hybrid and flexible working models to help avoid a wholesale return to offices at this stage. It also states that the Government recognises that homeworking still remains one of the most effective protections against the virus and for maintaining business resilience. The guidance provides that the following principles should be implemented in a phased return to offices:

  • the health and safety of employees, customers and service users should remain a priority for businesses
  • businesses are encouraged to work with employees and (where applicable and appropriate) trade unions to consider flexible and hybrid working arrangements in their own contexts
  • a phased and co-ordinated approach should be considered to support the introduction or reintroduction of hybrid and flexible working to support employee wellbeing and economic recovery
  • a wide variety of models of working should continue to be promoted where appropriate with businesses considering the unique situation for their staff e.g. hybrid models of office based and home working

Key issues to consider:

  • Do any contractual terms need to be varied? Any permanent change to a hybrid working model should ideally be formalised in employment contracts, to avoid any dubiety, rather than just allowing an informal arrangements to drift on for an unreasonable amount of time. For example, will there be a requirement for the employee to attend the workplace on a set number of days / particular days? Who is required to cover ongoing costs associated with working from home (such as broadband, heating, lighting and electricity etc)? Do working hours need to be amended to reflect new working arrangements such as working compressed hours or having flexible start/finish times? We can assist your organisation in implementing contractual terms which build in the necessary flexibility as we continue to emerge from the pandemic. 
  • Do your policies or handbook need updating? Ensure your Homeworking Policy addresses how employees will be supervised, how the organisation and line managers will communicate with them and how performance and output will be monitored when working at home. Consider including new or amended examples of what amounts to misconduct or gross misconduct in contracts, policies or handbooks.
  • Remind staff that they should continue to comply with your Sickness Absence Policy and reporting procedures when they are sick and unable to work.
  • Consider how to approach disciplinary, grievance, performance and absence and consultation meetings. Traditionally this will likely have been in person, but what will your model be going forward?
  • Who will provide IT or other equipment necessary for home working? This should be agreed and it is advisable to list any equipment supplied in the homeworking policy. The provision of equipment could be a reasonable adjustment for some disabled employees and may be the safest option for those with existing health conditions or who are pregnant.
  • Provide training and development for managers and staff to support successful hybrid working.
  • Ensure data protection obligations are maintained and that employees using their own IT equipment are processing information in compliance with data protection principles. Remind employees about home security, confidential information, keeping passwords safe and shredding documents securely.
  • Remember employers are responsible for an employee’s health, safety and welfare, even when working from home. Conduct risk assessments of all work activities carried out by employees working from home (including DSE, pregnancy and disability risk assessments).
  • Support staff through good people management and consider which type of hybrid working model best suits team working dynamics.
  • Be mindful of employee wellbeing: consider implementing procedures to remain in direct contact with staff working from home and to recognise signs of stress and isolation as early as possible; have regular team meetings/contact between employees and line managers and clarify how employees can get assistance and guidance if they need it.
  • Employers should continue to deal with flexible working requests within the statutory timeframes and in a reasonable manner.

As we set out previously, hybrid working will not be a one size fits all model. For many organisations, this will require a significant culture shift, the establishment of new ways of working and the implementation of associated policies and practices. An Organisation’s view on hybrid working may have changed substantially since the issue was last considered. Some employers may want all staff to move to hybrid working, whereas others may be happy to have it as an option for those who want it. Whatever approach your organisation wishes to take, our employment team are on hand to assist.

This update contains general information only and does not constitute legal or other professional advice.

Please contact our Employment Team should you require assistance in relation to any of the matters discussed.

Laura Salmond, Partner & Accredited Specialist in Employment Law: lis@bto.co.uk / 0141 221 8012

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