Hybrid working: legal issues for every employer

As many businesses plan a permanent move to hybrid working, Coodes’ Employment team outlines some of the legal issues.

Record numbers of employers are planning a permanent shift to hybrid working. After being forced to move to remote working through necessity during the pandemic, many organisations have seen the benefits of a more flexible approach.

According to research by the Chartered Management Institute on behalf of the Financial Times, most businesses have adopted a mix of home and office working. With this set to be the norm for many employers, is it right for every business and what are the legal considerations?

The benefits of hybrid working

Hybrid working seems to offer the best of both worlds. Employees benefit from greater flexibility, which could be especially useful to working parents and others with caring responsibilities. However, with many employees reporting feeling isolated during the pandemic, spending some time in the office with colleagues could provide a healthier balance.

Employers can potentially save on overheads by reducing their office space. Teams working collaboratively may also benefit from more face-to-face contact. In addition, offering hybrid working could give businesses access to new talent. A new study from Virgin Media O2 Business and the Centre for Economics and Business Research found that hybrid working could bring nearly four million people, particularly parents, carers and people with disabilities, back into the workplace.

Importantly, as we are still in a pandemic, hybrid working enables offices to run with fewer staff on site. This makes it easier to maintain social distancing and follow Covid-secure procedures.

These considerable benefits make hybrid working an attractive prospect for many employers. But what are the legal considerations?

Fulfilling your duty of care to employees

Employers had to quickly move to home working during the pandemic. This meant that many did not have time to carry out health and safety checks on employees’ remote workspaces.

Employers have a legal duty of care towards their workforce. This means they must do all they can to ensure all employees are safe at work, including those working from home.

Employers moving to hybrid working should carry out regular risk assessments to ensure employees can work safely from home. This may mean they need to make adjustments for employees with particular needs or a disability.

The onus is not entirely on the employer, however. Employees also have a responsibility for their own health and safety. This means that anyone working from home should speak to their employer about any concerns they have about the suitability of their homeworking environment.

Reviewing employment contracts

Remote or hybrid working can be agreed on a temporary informal basis. This means that there is no legal obligation for the employer to change an employment contract. However, employers taking this approach should be aware that, over time, this working arrangement could become an implied term of the employment contract. This could make it difficult for the employer to enforce a fulltime move away back to the office in the future.

Employers moving to a more permanent hybrid working arrangement should update their employment contracts to include working hours and location.

Dealing with expenses

There is no legal requirement for employers to pay expenses for costs staff may incur when working from home. However, many offer contributions towards Wi-Fi and other expenses. Decide what policy you will adopt and ensure all staff are treated equally. You can also include details of homeworking expenses in your employment contracts and staff handbook.

Handling data remotely

Remote working has been shown to make organisations more vulnerable to cyber attacks and data breaches. Employees working remotely are at greater risk of phishing attacks. Businesses also face the challenge of ensuring all devices are as secure as possible.

For many businesses, there is also the risk of a data breach if staff are working offsite. This could include accessing a database outside the office, where it could be viewed by other people, or taking papers containing confidential information between home and the office.

Businesses should take advice on this and ensure they are doing all they can to reduce the risks. This may include organising staff training to ensue employees understand what is expected from them.

Responding to flexible working requests

Many employers want to give their staff a degree of choice as to where they work. For example, they may ask employees to request how many days they spend in the office each week. Employers should review their flexible working policies to ensure they handle requests fairly.

The legal position is currently that any employee with at least 26-weeks continuous service has the right to request flexible working. Employers must then consider and respond to the request. An employer can refuse a request on specific business grounds. However, there is a risk of discrimination, so employers may need to seek legal advice before refusing a request.

For example, employers should be sensitive towards flexible working requests from someone with childcare responsible. Failing to agree flexible working for a parent could give rise to a claim for indirect sex discrimination.

Preparing for future legal changes

The Government recently launched a consultation on proposals to reform flexible working arrangements. The changes would not only give employees the right to request flexible working from their first day in a job, they would also reduce the grounds for refusing a request. If they are put in place, these reforms could make flexible working the default.

Our Employment team provide support to businesses helping them keep ahead of recent changes in Employment Law. If you need some friendly advice, call Steph Marsh on 01579 324 017 or send her an email.