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The buzz word has become “hybrid working,” where individuals split their time between home and their employers’ premises. For many employers it is a compromise to full-time remote or homeworking. Despite the lifting of lockdown restrictions, it appears to be a working model that is here to stay.
“The trend for working from home will continue to be commonplace.”
The statistics are clear; there has been a shift in the way many of us will work in the future. The Institute of Directors’ 2021 survey of business leaders showed that 63% of them intended to move towards one to four days of remote working per week. The British Chamber of Commerce’s research identified a similar trend with more than two-thirds of businesses continuing to offer some remote working. The professional body CIPD topped this off by finding that some 66% of employers planned to introduce or expand the use of hybrid working.
“Hybrid working creates employment law and HR challenges if employers do not assess whether their current employment documentation is fit for purpose.”
If hybrid working is to become the norm for your business, you need to ask whether your business is actually ready for this change. The following top-level questions need to be considered when assessing your level of readiness:
What do your existing HR policies say and do they support hybrid working?
Have you considered how your employees will be managed and supervised?
Do contracts of employment need updating to reflect the change?
Is the business insured for staff working from home?
How will confidential information and personal data be protected?
How will employees’ health and safety be protected?
Are there any hidden costs?
In most cases, HR practices, policies and procedures are unlikely to be able to accommodate this new way of working and will need updating. If hybrid working is to be adopted, now is the time to take stock by reviewing and auditing your business’ practices and procedures to ensure that the behaviours to support an effective hybrid working model are clearly defined. Where there is certainty and clarity, there is less legal risk.
“Hybrid working is going to be a welcome benefit for most employees but there are still legal risks that need to be managed.”
Happy employees usually means employers do not have to worry about grievances and tribunal claims. There are however some key risk areas that need to be managed.
If terms and conditions are to be changed, employees will need to agree. While most employees are likely to be happy, if agreement cannot be reached, the change cannot be imposed unilaterally. To do so could be a breach of contract and also lead to constructive unfair dismissal claims. Consultation is therefore essential.
All employees need to be treated consistently whether they work from the employer’s premise or from home. Discrimination complaints can arise where a difference in treatment results in those with protected characteristic being worse off.
Just because employees are off site does not mean the duty to protect their health and safety stops. Employers still have a duty of care to ensure employees’ welfare is protected. A failure to ensure there is appropriate protection could give rise to negligence claims.
“With the focus being on employee rights and particularly on employee wellbeing, business owners need to step back and ask themselves what they are doing to protect their businesses.”
Adopting a hybrid working model is not just about changing the place of work or carrying out a health and safety risk assessment. While any HR audit referred to above needs to address these issues and employment law risks, consideration must be given to the broader financial and commercial risks that arise from homeworking, which could affect the business’ reputation or cause financial loss.
Where employees are working from home, employers have less control; the risks of a data breach, the loss of confidential information or the misuse of social media are increased. If the aim is to protect the business, consideration should also be given as to whether post-termination restrictions remain reasonable and relevant where there has been a change to the workplace. Likewise, to protect intellectual property rights further clarity is required to ensure that there is certainty over ownership when work has been created from home.
A risk assessment to identify how high the risks are and how to manage them is sensible. In the case of data security, a move to a hybrid working model would justify a data protection impact assessment.
Embracing hybrid working has many benefits for businesses and their workforces. However, if this model is to be effective and sustainable, employers need to be aware of all the risks and introduce measures to minimise those risks.
FG Solicitors offer a proactive and practical approach, providing Businesses with the confidence to tackle the legal issues and risks that arise from the introduction of hybrid working.
Why not give us a no obligation call on 0808 172 93 22?
This update is for general guidance only and advice should be taken in relation to a particular set of circumstances.