Hybrid working policies – Designing them with the employment legal risks in mind

25 June 2021

With the Government’s guidance to work from home if you can being lifted from July 19 2021, and employers embracing hybrid working, we explore some of the key employment legal risks which should be addressed when designing your hybrid working policy. 

While this article only explores the employment legal risks, it’s crucial key stakeholders such as HR and Tax are included in the development of any hybrid policy given the implications for those departments. 

1. Addressing discriminatory risks

Remote workers have historically faced the issue of managers believing workers based in the office, and therefore more visible, are higher performers. This led to office-based workers being more likely to be awarded promotions, salary increases and bonuses when compared to remote workers.

However, this conflicts with general economic view during the pandemic, that productivity levels haven’t changed while almost all office-based workers have been working from home. 

Pre-pandemic, a higher proportion of remote workers were women who are still more likely to do the majority of childcare. If that continues as we move to a hybrid way of working, this creates a greater risk of indirect sex discrimination claims because of the perceived impact remote working may have on career goals when compared to office-based workers. This has created concerns among equal rights campaigners that it could also lead to a widening of an employer’s gender pay gap.  

This discrimination risk should be tackled now to prevent it growing into a much bigger problem. A hybrid working policy must therefore address these concerns, so that managers are educated on the issue and the steps they can take to avoid any bias towards office-based workers. Similarly, the policy should indicate to the workforce where any of these concerns can be raised confidentially, for example, through the employer’s whistleblowing policy. 

There are also disability discrimination risks to consider. Employers have a duty to make reasonable adjustments to a disabled worker’s terms and conditions or working environment to remove any significant disadvantage created by their disability. 

As employers adopt a hybrid working model, with employees working from home and the office, there will be an additional obligation on them to consider making reasonable adjustments to both working environments for disabled employees. Some line managers will be unaware of these obligations, so setting out a roadmap for them to follow in a hybrid working policy is a key step towards mitigating that risk.  

2. Avoiding an influx of flexible working requests 

With many having worked from home during the pandemic, there will be some uncertainty about whether their employer will want them to continue to do so or to come back to the workplace. 
All employees have the right to make a flexible working request after 26 weeks’ continuous service. Employees wishing to continue to work from home may therefore start exercising that right. While there is no legal obligation to agree to the request, it should be considered in accordance with the proper legal process. That will increase the administrative burden on managers and HR and create risks around the order in which to deal with the requests and for whom they will be agreed. 

That risk and workload can be managed through pulse surveys for the workforce to understand the general mood of how they want to work in future. The outcomes from those surveys can then be built into the hybrid working policy and the process for requesting flexible working changes in the future. 

3. De-escalating workforce disputes

The return to the office brings with it fresh challenges for HR and managers. Public health measures and government orders have so far necessitated working from home, thus aiding employee compliance. 

However, as the government order is lifted and employers are able to make choices about the location of work, the risk of employee discontent rises. 

For example, some may not be willing to move back to permanent office working or to work with less flexibility than they may have enjoyed while the work from home order was in place. Discontent may also arise from those who must go into the workplace because of the nature of their role where others do not.

A well prepared and well communicated hybrid working policy will provide clarity to the workforce on why certain decisions have been made, how working changes can be considered and how concerns can be addressed. All of which should de-escalate issues before they evolve into something more costly and disruptive like an employment tribunal claim. 

If you would like to discuss how you can prepare a hybrid working policy or have any questions on hybrid working, please contact Charlie Barnes.