September 27, 2021

For nearly a year and a half, many employees have been homeworking out of necessity, in line with the official guidance that everyone should work from home if possible. Now that the Government is advising a gradual return to the workplace, some employers have decided to continue homeworking arrangements or to introduce a hybrid working model that alternates between time in the office and time working from home. In this article, we consider a number of employment law issues that arise out of such arrangements and summarise some recent tribunal decisions that touch on these topics.

Practical considerations

An employer should consider its overall approach to homeworking and hybrid working. For instance, the employer will need to decide whether to require employees to submit formal flexible working requests (if eligible) to request a contractual change reflecting the agreed arrangement, or whether to implement a policy of discretionary working at home (which may be much less burdensome to administer). Some employees may be content with a flexible arrangement, whereas others may prefer a formal contractual change to protect their agreed working arrangement.

An employer will need to consider how its chosen approach will operate in practice. For instance:

  • if homeworking and/or hybrid working is allowed, is it mandatory or optional?
  • is working remotely from somewhere other than the employee’s home address allowed?
  • can all employees work from home or is it limited to certain roles?
  • are there any conditions, such as confirmation of a suitable working environment, that must be met before an employee can work from home?
  • will the ability to work from home be subject to minimum requirements to attend the workplace? Will the same requirements apply to all roles?
  • will members of a team have the flexibility to choose which days are worked from the workplace or will there be specified days that the entire team must be in the workplace to collaborate?
  • in a workplace containing multiple teams, how will the logistics be managed to ensure there is sufficient desk space on the days when several teams are working from the workplace?
  • will there be compulsory attendance at the workplace, for example for client meetings, training, team meetings, appraisals and disciplinary issues?

Many of these issues can be expressly dealt with in a policy.

When putting in place a new working model, employers should consider whether any of the legal obligations to inform and consult have been triggered, such as under an agreement covered by the Information and Consultation of Employees Regulations 2004 SI 2004/3426. In the unlikely event that the employer is planning to dismiss and re-engage employees in order to implement a contractual homeworking or hybrid working arrangement, information and consultation obligations under S.188 of the Trade Union and Labour Relations (Consolidation) Act 1992 may be triggered. Even if there is no legal obligation to consult, employees are more likely to accept change where they have been consulted in advance and the employer has been clear and transparent in its communications.

If an employer is considering a significant change to its existing model, and intends to allow increased homeworking and hybrid working, it should be mindful of the effect this will have on its culture. With fewer in-person interactions, employers will need to ensure they have the tools in place to enable continued collaboration and team building in a remote environment, and to support the mental health and wellbeing of an increasingly remote workforce.

Managers should be trained on leading a remote workforce, including the importance of regular check-ins and inclusion. Employers should consider the options for team meetings and social events so that all parts of the workforce are included. This may be through the use of virtual video-conferencing facilities or using meetings and events as opportunities to come together in person.

We will discuss the following employment law issues that may arise in relation to homeworking and hybrid working in a series of blogs.

  • We will consider the benefits and drawbacks of this type of working arrangement.
  • We will address the potential contract issues that may arise.
  • such as the possible need for a variation of the ‘place of work’ in the contract and other terms that may be affected.
  • The procedure for making a flexible working request to put homeworking or hybrid working arrangements on a contractual footing.
  • We then discuss some unfair dismissal and equality issues that may have particular application to homeworkers and hybrid workers.
  • We set out some considerations that employers will need to take into account in developing a hybrid working policy. and
  • Finally we will discuss the issue of remote working from abroad.

If you require any more information, advice or support please call us on 07375 097443 or e-mail enquiries@lbjconsultants.co.uk

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