Hybrid working - key legal considerations for employers

It’s been over three years since the first ‘work from home’ mandate was introduced. Since then, working arrangements have evolved and many employers are still adjusting to a hybrid working landscape. According to the Office of National Statistics, 28% of employers reported hybrid working between September 2022 to January 2023.

In our recently published ‘People Perspectives - redefining the workforce’ report we found that of the employers surveyed, 52% have adopted a hybrid working arrangement whereby their employees spend a minimum number of days per week in the office. 35% felt that hybrid working will be the biggest challenge for their business in the next 12 months. 

In this article we address some of the key considerations for employers adopting a hybrid working model.  

Requests for hybrid and flexible working

Employees don’t have an automatic right to work flexibility however, those with at least 26 weeks’ continuous service do have the legal right to request to work flexibility under flexible working legislation. 

The government has announced that it will soon give all employees a ‘day one’ right to request flexible working, giving all employees the right to request remote working, from the start of their employment.

The Employment Relations (Flexible working) bill received Royal Assent in July and we expect new legislation setting out the changes to flexible working requests very soon. 

For further details on flexible working requests, please refer to our article on flexible working.

Hybrid working policies

Hybrid working policies allow hybrid working arrangements to be decided on a discretionary basis, if agreed with a manager or HR, without the need for a formal statutory flexible working request. Therefore, putting in place a hybrid working policy could also reduce the number of statutory flexible working requests with which an employer has to deal, particular once new legislation on flexible working is passed. 

These policies should clearly set out the expectations of employees and any conditions which are applicable. For example, remote working may not be appropriate for all roles and employees may be required to attend the office a certain number of days a week and for team meetings, training and in-person events. These policies should also deal with health and safety obligations when working remotely, any insurance requirements and data security and confidentiality. 

While a hybrid working policy is intended to operate on a non-contractual and discretionary basis, employers should be aware that the hybrid working arrangement may, depending on its nature and duration, become an implied term of the employment contract. 

Discrimination risks

A refusal to allow hybrid working could in certain circumstances constitute indirect discrimination. This may be on the following grounds:

• sex – if it has a disproportionate effect on one sex;
• disability – if the requirement to be at work disadvantages a disabled employee; and 
• age – if the requirement to be at work affects more younger employees than older employees. 

Employers can defend indirect discrimination claims if the decision not to allow hybrid working can be objectively justified on business grounds. This will need to be carefully balanced alongside the discriminatory impact on the employee. 

An employer will also need to ensure, when putting in place hybrid working arrangements, that those who work part-time are not treated less favourably than comparable full-timers. Less favourable treatment could result in sex discrimination or equal pay claims.

Changes to employment contracts

Formal changes to employment contracts will only be required where there is a permanent change to an employee’s contract of employment. In relation to hybrid working, this will be necessary where there is a permanent move from workplace-based work to remote-based work. 

This will fall outside of the hybrid working policy and will generally follow a successful flexible working request and result in a variation to the employee’s contract.  

Training managers

57% of employers surveyed in our ‘People Perspectives’ report claimed that they have upskilled managers to better manage remote working. 33% reported that they will be doing so in the next 12 months.

Contact between homeworkers and their colleagues is likely to be less frequent which causes supervision of work to be practically more challenging for managers, particularly with junior employees and new starters. 

Successful hybrid working requires regular communication and appropriate software to enable those working remotely to feel included in meetings and other office-related matters. Training managers on managing their remote working staff will build up trust and more effective working relationships. For junior staff, more proactive steps will be required which could include setting clear objectives, having regular catch ups and keeping on top of learning and development.

Alternatively, employers may prefer to have all staff working in the office on the same days for better performance and to create a more effective working environment. This can be addressed in the hybrid working policy.

Health, safety, and wellbeing of staff 

Employers have statutory duties in relation to the health and safety of their staff. This includes both mental and physical health. 

Employers are required to take reasonable care to provide its employees with a safe working environment, which extends to any remote working location from which their employees work. This includes conducting a suitable risk assessment of all the work activities carried out by staff in the workplace and from home to identify any risk areas and put in place appropriate measures. Additional measures will be required in relation to disabled and pregnant employees.

Conclusion

When managed appropriately, hybrid working can be an effective tool for businesses. In some cases, it can lead to increased productivity, and it has been reported to enhance employee morale. Employers adopting hybrid working practices must ensure they are aware of their legal obligations to their staff, legal risk areas and that they provide their managers with appropriate training and support.

If you are an employer and would like support with hybrid or flexible working arrangements, please contact Jennifer Mansoor.