The Hybrid working revolution – do employment contracts now need to change

29 July 2021

For many, the pandemic brought government-mandated working from home (WFH). The Government has also flirted with the introduction of a permanent right for employees to work from home, as part of a right for all employees to work flexibly. With the delay to the expected Employment Bill, no such right has yet been announced. 

With effect from 19 July 2021, the Government workplace guidance is now: ‘The Government is no longer instructing people to work from home if they can, so employers can start to plan a return to workplaces.’

But what options are there for those who prefer hybrid working – being a mix of working remotely, and in an employer-provided workplace for the remainder?

In this article we focus on workplace location. We recognise that hybrid working is a much wider topic and includes more generally: 

What do employment contracts say about the workplace?

Every employment contract or terms and particulars of employment is required to give particulars of ‘the place of work or, where the employee works at various places, an indication of that and of the address of the employer’ (Section 1(4)(h) of the Employment Rights Act 1996). Since April 2020, this requirement also applies to new workers.

What flexibility is there for employers and their workforce? Many such place of work clauses give to the employer the flexibility to move the employee to work at any location within a reasonable distance of the stated workplace. These are called mobility clauses.

Courts and tribunals expect employers to operate these mobility clauses reasonably, or the employer could be in breach of the implied term of mutual trust and confidence.

In the absence of a specific mobility clause, there is a limited right for an employer to make a temporary change to an employee's place of work only. Mobility clauses are a one way, employer-controlled device.

There is no ability for the employee to require a workplace move. Instead an employee workplace change request must be made as part of a flexible working request, which includes a remote working component.

Key current questions

Currently, these questions arise:

  • Whilst it is unarguable that, for many sectors, the WFH request must now be very powerful is a flexible working request still the employee’s only route to more permanent working from home or remote working?
  • How does a mix of workplaces for hybrid working fit into an existing contract clause?
  • How is the hybrid working location mix determined where there may be differing views between an employer and individual workforce members, differing personal circumstances?
  • How should employers proceed where they have divested their contractual workplace site because of the success of the WFH enforced revolution, so there is no longer an employer-provided workplace to which employees can return?

Routes to make change

In the absence of a fit for purpose mobility clause, employee consent to a workplace location change is needed. Many workers may be delighted to agree to the change to hybrid instead of a full-time office return. Otherwise, winning workforce hearts and minds to a change is key, as is documenting the agreed contract change.

Employees who want to continue remote workplace working will need to secure their employer’s agreement. The flexible working route at least ensures a hearing and, if refused, reasoning that can be scrutinised.

Guidance

ACAS has issued guidance on hybrid working, which recommends the formulation of a hybrid working policy. Developing this after staff surveys to establish staff sentiment clearly makes sense. ACAS has also published the results of a survey showing that over half of employers expect an increase in employee requests for flexible working.

In terms of workplace change flexible working requests, perhaps the best course at present for all concerned is to maintain flexibility.

Few employers know in the medium term, let alone the long term, whether productivity and team cohesion will increase through a requirement to return to the workplace, full or part time. Many employees may be uncertain as to whether their careers will be best advanced by remote working, even in part.

When a change is made it will be a contractual change, so it needs to be agreed after fair consultation and be clearly documented. For now, however, why not adopt the approach of the wise manager when faced with a request for flexible working from an employee who can only make such a request once in a year? Agree any change for a mutually agreed trial period.

It will be important to monitor progress over that trial period, and for both employer and workers to use that trial period wisely to establish, hopefully consensually, whether hybrid working workplaces will become a permanent fixture.

If you have any questions on employment contracts and hybrid working, please contact Carolyn Brown.