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The legalities of hybrid working | 6 tips for employers

Written by Jane Hallas on 27 May 2021

Each week, more businesses are abandoning their usual ways of working and embracing a more flexible approach. In fact, according to a BBC poll of Britain’s 50 biggest firms, 43 are planning a mix of home and office working post-lockdown, while four said they were keeping the idea of hybrid working under review. But before diving into hybrid working head first, there are numerous legalities to consider.

As well as weighing up whether it will work for you from a practical and people perspective, hybrid working will undoubtedly have various legal implications, as it will likely impact employees’ terms and conditions of employment and your policies and procedures, too. It may also present potential discrimination issues and create challenges around data protection and confidentiality.

If you are considering allowing employees to work both from the workplace and at home (or elsewhere) as part of their normal working pattern, here are six things to bear in mind.

Capture any changes in writing

Whether you’re looking to take an organisational approach to hybrid working or planning to introduce this on a case-by-case basis, it’s essential that any changes are properly documented from a contractual point of view. This can either be through issuing an updated contract or by a letter of variation. Both will have contractual effect.

You may be considering a more ‘informal’ change, where nothing is put down in writing. Perhaps you feel this gives you more freedom to call people back to the office if things don’t work out as planned. However, keep in mind that even without a written agreement, employees could still argue that their contracts have been varied by custom or practice or by implication. We therefore recommend formalising arrangements either by a new contract or variation letter in the lead up to 21 June to avoid potential disputes.

Other things to bear in mind when updating your contracts or issuing a variation letter include:

1

Place of work – There should already be a clause specifying where the employee is required to work. Sometimes such clauses give you the right to move the employee elsewhere on a temporary or permanent basis. Start by looking at what the contract says to see whether hybrid working can be accommodated under existing terms; if not, you will need to agree an amendment with the employee. 

  • Tip: Be specific about how often you expect them to attend the office, for example, ‘at least once a month’.
2

Working from abroad – If employees are requesting to work from abroad, there are practical as well as legal considerations to bear in mind. Where are they moving to and how feasible will it be for them to get back to the workplace? How often do you need them to return to the office and over how many days? Be clear at the outset as to what is required; that way, if the employee refuses to attend the office without good cause, they would be in breach of contract. 

  • Tip: If the employee is based outside of mainland Britain, take advice on immigration, tax, data protection and insurance.
3

Hours of work – Do these need to be changed to reflect new working arrangements? If so, remember that employees’ terms and conditions must now specify both their normal working hours and the days of the week they are required to work. You must also specify whether such hours or days are variable and, if they are, state how they may vary or how that variation will be determined. 

  • Tip: The contract should make clear that when working at home, employees are responsible for regulating their own hours and rest breaks. Whether this is done on trust or by set hours will depend on your particular organisation.
4

Other – You may also wish to consider adding in other contractual rights, such as the right to enter the employee’s home to install, maintain and service equipment; to recover company property on termination; or to carry out risk assessments for health and safety purposes.

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Pay attention to your policies

If your team will be based partially or fully remote, you may need to adjust your absence policies and procedures. For example, if an employee is too ill to attend the office on a day they would normally be required to come in, will this be treated as sick leave or will you allow them to work from home if well enough to do so? These things need to be made clear so that everyone understands the appropriate steps to take when sick.

Similarly, you might need to amend policies around appraisal, disciplinary or performance management to reflect hybrid working relationships. For example, will you require staff to come into the office for formal meetings or will you conduct them remotely? What about allowing them to be accompanied; will their companion be able to participate remotely? Again, this should be made clear to avoid ambiguity and issues later on.

Be careful to uphold confidentiality

If you haven’t got one already, ensure that you have carefully-written confidentiality clause in the employee’s contract or ask them to sign a Deed of Confidentiality. This should make it clear you define as confidential information and how the employee should ensure they keep such information secure. It should also make it clear that breaches of confidentiality can be considered as gross misconduct, leading to summary dismissal.

Confidentiality goes hand in hand with data protection. You should check whether you need to update your Data Policy and consider doing a data impact assessment for hybrid working. You should also amend your contracts, if necessary, to include the express right to monitor employees’ data, including their emails and Internet usage – and back this up with a clear IT and Telecoms Policy so that the employee understands what can be viewed and accessed.

Take advantage of trial periods

If you are open to individual requests for hybrid working, consider how you will facilitate those requests. Will you utilise your existing flexible working procedure? If so, we recommend that you consider implementing a trial period if you are not sure how successful the arrangement will be.

Remember that if you are following the Flexible Working Procedure, this is a statutory procedure, and employers must notify employees of their final decision within three months of their flexible working request. As such, if you do want to try things out first, you will need to agree with the employee to postpone the final decision until the trial period has ended.

It’s important that the terms of any trial period are communicated clearly in writing to the employee; be clear how long this is for, what is required during this period, and how you will determine whether it has been successful or not. Also state that you reserve the right to revert to the original position should you choose.

Make sure decisions don’t discriminate

Whilst there is no right to be given hybrid or any flexible leave, you do need to be mindful that a refusal can lead to claims of indirect discrimination if one protected group is more adversely affected than others by this decision. The classic example is female employees who request hybrid working because they are the primary carers for their children or elderly parents.

A justification defence is available if you can show that your refusal is a proportionate means of achieving a legitimate aim. It’s therefore essential that you have a reasoned and thought-out approach to such requests and give them conscientious consideration.

Provided the reason for it isn’t arbitrary and there is no discriminatory element, it may be possible to have certain members work from the office each day, whilst others are offered some form of hybrid working. For example, you could justifiably require more junior colleagues, who may need a greater degree of supervision, to attend work, so long as you ensure that they do in fact get the required support in the office.

Seek agreement before introducing a company-wide approach

If you are considering a company-wide approach and it is you that wants to impose hybrid working, you will need to seek agreement.

If you don’t have agreement, you will need to follow formal consultation requirements and have a sound business rationale for wanting to make the change. If it looks as though 20 or more employees will refuse to agree, you are then faced with the option of dismissing and re-engaging them, or putting them on notice that you plan to enforce the change anyway.

In this scenario, make sure to comply with the requirements for collective consultation; this means consulting with elected reps or recognised trade unions and sending the HR1 form to the government. If fewer than 20 employees are refusing to agree to the change, you will still need to consult with them individually before considering dismissal and re-engagement or unilateral variation.

There are various legal risks involved in either scenario, including protective awards and claims for unfair dismissal and breach of contract, so it is always wise to take legal advice before pushing through any major change without consent.

We discuss the four ways employers can vary a contract, and the various risks, here.

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Queries or concerns around hybrid working?

For many organisations, hybrid working is a largely untested area, and there are many practical, legal and HR implications to consider.

If you’re not sure how to execute your plans compliantly, our Employment Law and HR experts can answer your questions and guide you through the process to help you get it right. We can also review and amend your contracts and policies to ensure they are robust, fit for purpose and offer maximum flexibility for your organisation. 

For support, call 0345 226 8393 or request your free consultation using the button below.

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