Employment Focus July 2021- Hybrid Working

With the green light being given by the government to lift all social distancing restrictions from Monday 19 July 2021, many employers are faced with the question of what they should do with their working arrangements going forward. Many employers have, through necessity rather than choice, operated remotely due to the COVID-19 pandemic, but with restrictions finally easing, it may be the time for employers to think about whether they wish to formalise home working or other flexible arrangements, such as a hybrid working model.

In terms of informal steps, employers considering a flexible or hybrid working model, should hold open conversations with its employees around flexible working arrangements. This will allow a discussion to take place about which roles can and cannot be done from home; who may or may not want to work from home; and establish if there are any concerns and how best to handle them. This will ensure that decisions about working from home are fair and comply with equality legislation.

Employers may also hold discussions with any trade union or other employee representatives. If an employer has an existing agreement with a recognised trade union about working from home, for example an agreed homeworking policy, they must consult the trade union if they’re considering any changes.

Once employers have held the appropriate conversations, they may wish to think about whether to formalise home working or other flexible arrangements. Employers may prefer full or partial homeworking, and many may consider reducing their office footprint longer-term. If so, employers are encouraged to review their contracts and policies to reflect the decisions made around flexible working. It is important to note that, whatever the flexible arrangement is, some elements of flexibility should be retained within the contract. For example, requiring employees to attend the workplace for a minimum number of days per week, or for specific reasons, such as for meetings/ appraisals, or disciplinary action etc. Thus, flexibility should be retained within the contract to require the employee to attend the workplace if required by the employer.

If it is decided that the working location will be at ‘home’, then employers should be mindful of employees claiming travel expenses when travelling to the office or other place of work. Moreover, consideration should be given if employees are required to remain within commutable distance. If so, then living within a certain radius should be documented within the contract.

Some employers may feel as though there is still too much uncertainty to confirm working arrangements going forward. This should still be communicated to employees and explained that homeworking will be kept under review. If an employer intends its workforce to return to the office, employees should be made aware of flexible working requests if they wish to work from home on a more permanent basis. These can be considered on a case-by case-basis.

Alongside reviewing employment contracts, employers may wish to review their existing policies and handbooks. Employers should review how their existing sickness, data and IT, disciplinary and grievance and benefit policies are impacted by a shift to homeworking. In relation to any sickness/absence policies, the Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020 are currently in force which makes it a criminal offence for an employer to require a self-isolating worker to attend work. Due to a range of circumstances where employees may be absent from work due to the pandemic, it is prudent to amend these policies to allow for potential temporary homeworking/Covid-related absences.

Further, it is sensible to review any data and IT policies which will address data and information security issues related to working remotely. This should also be reviewed alongside any procedures and practices in place where personal data is being processed using remote-working software.

It is important to consider any disciplinary and grievance policies in light of homeworking. This is particularly important in circumstances where employees working from home may no longer be able to attend in-person meetings and normal timelines under these policies and procedures may need to be altered. The policies should be updated to ensure a fair procedure for office workers and homeworkers.

An employer may find it sensible to introduce a homeworking policy which helps employees to understand how people will be set up to work from home, including how the employer will carry out risk assessments; who will provide and pay for equipment; how homeworkers will be managed; how things like expenses, tax and information security are handled; and the employer’s approach to homeworking. Within this policy, it will be important to ensure that employees are aware that working from home means they are still covered by the law on working hours. If a homeworking expenses policy has been previously agreed with a trade union, the employer must agree any changes with the union.

Employers should finally consider the following when shifting towards hybrid working, or other flexible working arrangements.  Importantly, a risk assessment should be carried out in both work settings, at home or in the office. This will ensure that employees are provided with the correct equipment to carry out their role efficiently, such as a phone, laptop etc, and that they have access to the internet. A risk assessment will also cover any health and safety issues which may arise from homeworking, such as ensuring that there is an appropriate work area at home, and that the office is covid-compliant when employees attend. It may be appropriate to require the employee to check whether there are any restrictions within their home insurance, mortgage provider or landlord which would prevent homeworking.

Moreover, employees working at home should not be treated less or more favourably than other employees in the organisation because they work from home. In both work settings, employees should be treated equally and provided with the same opportunities as one another. An employee’s pay and other terms and conditions of their employment should stay the same unless it’s necessary to change them. For example, updating the addresses where the employee will work.

If you have any questions relating to this article or require any advice please contact Fiona Campbell, Associate in the Employment team, on 0191 226 3703 or at fiona.campbell@sintons.co.uk.

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