Employment Law Focus | Homeworking and Hybrid Working

In the past 18 months many workers have experienced hybrid or remote working out of necessity due to covid-19 restrictions and guidance. In April 2020, the Office for National Statistics reported that 47% of people in employment were carrying out some work at home. Now despite most covid-19 restrictions being lifted, many employers and employees have chosen to continue with hybrid or remote working models after experiencing the benefits of this unexpected change in working practices. This articles explores the various employment law issues that can arise out of such arrangements.

Contract Issues

Most employment contracts for office-based workers specify the employer’s office as the place of work, sometimes including a clause to allow the employer to order the employee to work elsewhere in certain circumstances. However, should the employer wish to change from office-based working to a hybrid or homeworking model on a permanent basis, it is recommended that the contract be amended to reflect this. Employers should in the first instance review the wording within employment contracts, as there are some situations in which a change would be unnecessary, such as if hybrid or homeworking is within the scope of the current contractual terms. For example, ‘your normal place of work is [the employer’s office] or such other place as we may reasonably determine’. It could be argued that such a clause would entitle the employer to direct a change of workplace, as the ‘reasonableness’ test is likely to have been satisfied during the period of government mandated homeworking guidelines. However, this will be put to the test over the coming months by employers, and it is not clear whether it would be enough to establish hybrid or homeworking on a permanent basis. As an employer, if you are unsure whether a change of workplace requires a change to contractual terms and conditions for your employees, it is always best to seek legal advice for your specific circumstances. Employers will also need to be aware of all options available if a contract variation is required, to ensure they follow correct procedures.

Developing a hybrid working policy

Employers should consider their approach to homeworking or hybrid working carefully, deciding whether employees are required to submit a formal flexible working request to request a contractual change or whether to implement a policy of discretionary working at home. Employers should have a clear policy in place to cover all types of remote working. The policy should determine the status and scope of homeworking, hybrid working or remote working. If the employer allows homeworking on a discretionary basis, this should be made clear within the policy, in addition to outlining minimum requirements and obligations imposed on the employee. For example, the employee agreeing to work their contracted hours, having a suitable working environment to carry out their role effectively and to outline the employees’ responsibility for ensuring the security of confidential information in the remote working location. The policy should also make clear the circumstances and procedures by which such arrangements may be terminated, or where homeworking may be unsuitable, such as where personal interaction is required or where the employee requires training or supervision. To avoid issues of discrimination or unfair dismissal, employers should ensure that the policy is applied consistently. Guidance should also be issued to managers to emphasise the importance of consistency when making decisions.

Unfair Dismissal and Equality Issues

Employers should be aware of the potential for equality issues and unfair dismissal claims that may arise in relation to homeworking and hybrid working arrangements or flexible working requests. New ACAS hybrid working guidance for employers sets out advice to help ensure employers treat all employees fairly. It notes that employees should have the same access to support, training and opportunities for promotion wherever they are working. Employers should also ensure that rates of pay offered to those working from home are carefully considered, even if such changes are agreed by employees, as they could present the basis for an equal pay or discrimination claim. Employers should also be aware of the risk for indirect discrimination claims to be brought if homeworking or hybrid policies disproportionately affect employees with childcare or caring responsibilities or those with disabilities.