Dubbed the future of work, “hybrid working” has become one of the most talked about topics in the employment and HR world over the past year. Now that the Government’s instruction to “work from home if you can” in England has been lifted, businesses have the green light to progress to the implementation phase of this new way of working (with the caveat that any return to the workplace, including on a hybrid basis, should be “gradual” and take full account of the latest “Working safely during Coronavirus (COVID-19)” guidance (available here).
Hybrid working is not, however, “one thing”; the form it takes can vary greatly depending on the degree of choice afforded to workers as to how they split their working time between the office and remotely. Deciding which hybrid working system to adopt is an important, but far from straightforward, decision for businesses, involving the balancing of multiple commercial, practical, legal and potentially regulatory factors.
In this article, Partner and General Counsel Beth Hale sets out some of the key considerations (and drivers for design) in establishing effective hybrid working models.
The spectrum of hybrid working
As alluded to above, hybrid working is in reality an umbrella term for a number of potentially quite different working models. At one end of the spectrum is a fully flexible hybrid model (or the “work whenever, wherever” approach), which gives workers complete autonomy to decide how and to what extent to split their working hours between home (or another location) and the office. At the other end, is a highly structured hybrid model – whereby workers are mandated to come into the office on certain days between certain times, with the remainder of their working week to be spent at home.
There are multiple iterations of hybrid working models which fall somewhere in between these two ends of the spectrum – including, for example, the “3 day in, 2 day out” (or vice versa) policy, but without set days (which seems to be popular in city based professional services firms).
How to choose?
The pithy answer is not easily. As mentioned in the introduction, there are multiple different factors to weigh up in deciding how to implement hybrid working practices in your organisation. The decision about where your business should sit on the spectrum is an important one with potentially far-reaching consequences – and in our view it should not be rushed, for example for fear of being left behind.
Three of the key considerations (and drivers for design) of an effective hybrid working model are likely to be:
1.What are your business priorities for a new form of working?
What is the ideal position for the particular business? One way to answer this vital question is to consider how imposed and sudden large scale remote working throughout the pandemic may have negatively impacted your business (for example, in terms of culture, innovation/creativity, productivity, satisfying client/customer demand), and then examine how those issues might be addressed by a new model of working. Depending on the size of the organisation, those questions may need to be asked on a team-by-team basis as the answers may vary considerably across different sections of the business. If this is the case, it might be that a less centralised approach to hybrid working, for example whereby managers are given discretion to set working patterns for their own team, is preferable.
Taking time to reflect on and identify the problems your business may have encountered over the last 18 months allows you to think creatively about the possible solutions. For example, many businesses have identified the detrimental impact virtual engagement (via platforms such as Zoom or Teams) has had on collaboration and creativity. That may lead you to decide to nominate set days (e.g. weekly or fortnightly) where everyone within a particular team or department is brought together in one physical space and certain meetings (which require creative group thinking/brainstorming) are held in person. Having a clear and identified rationale behind any decision (particularly those that are likely to reduce individual autonomy and therefore may face resistance) will also be helpful when it comes to explaining the new policy to employees and may help to mitigate the legal risks associated with these decisions (see section 3 below).
2. What do your people want?
Before getting into the detail of the commercial, legal and regulatory landscape, it makes sense to invest some time and effort into understanding whether, and if so to what extent, your staff (at all levels and roles) actually want to work on a hybrid basis. If the views of your workforce reflect those of the wider population, the likelihood is that a sizeable portion of your workers are keen to retain some level of home-based working.
Surveys, together with group and individual consultations, can be helpful to gauge what it is your staff want and how strongly they feel about these issues (including the underlying reasons). In practice, there is likely to be divergence in views amongst your workforce as to exactly what they want – based on a wide variety of factors including (but not limited to) age, personal/living circumstances and personality type (e.g. introverted vs. extroverted). A variety of viewpoints is not something to get disheartened or put off by – it may be sign of a diverse workplace (an overwhelmingly good thing) – and listening to and honouring the viewpoints of all (rather than shrugging off the divergence as an administrative headache) is an important aspect of inclusivity.
3. What are the legal and (if relevant) regulatory risks?
Before taking any steps to implement a proposed new way of working it is important to consider, and possibly seek specialist advice on, the potential legal (and if relevant, regulatory) risks of your chosen approach. These may include (but are not limited to):
While employees do not have a right to work flexibly or on a hybrid basis, there is a risk that an employer’s refusal to allow this may constitute indirect discrimination if it adversely affects a protected group. As tribunals generally accept that women are more likely than men to have caring responsibilities, it follows that any flexible (including hybrid) working policy (or refusal to adopt a certain policy) which puts those with childcare responsibilities at a particular disadvantage could be argued to be indirectly discriminatory against women.
In the recent case of Dobson v North Cumbria Integrated Care NHS Foundation Trust, the EAT made the comment that “some types of flexible working, e.g. the ability to work any seven hour period between the hours of 8AM and 6PM might even be considered advantageous by some with childcare responsibilities”. Employers should tread cautiously where they wish to refuse a particular flexible or hybrid work pattern (both in relation to a specific individual, and/or more generally) to ensure that this does not expose them to the risk of potential indirect sex discrimination claims.
b. Health and Safety
Employers have common law, statutory and implied contractual duties relating to the health and safety of their employees and contractors which will need to be considered in the context of any proposed new working model. It is likely that any risk assessments which may have been carried out as part of businesses’ transition to remote working in the pandemic will need to be revisited if a different and permanent hybrid working model is being introduced.
Employers should give particular consideration to the potential impact of longer term home-working (even if on a hybrid basis) to their employees’ mental wellbeing and give thought to what steps might be necessary to ensure that, for example, appropriate boundaries of working time are established and that home/hybrid workers are given adequate support and opportunities for connection with co-workers.
c. Data protection and information security
Hybrid working gives rise to a range of data protection and information security risks which employers need to recognise and address. For example, where staff are printing and storing work-related documents at home it is important that they are adhering to the relevant principles under data protection legislation. Educating staff on their obligations in this regard (and ensuring that relevant policies are updated to reflect these), as well as carrying out a data privacy impact assessment of the data protection implications of any new working model and putting in place adequate security measures / taking appropriate steps to ensure data protection compliance standards are met is important to avoid potential enforcement action by the ICO and/or reputational damage. Similarly, any hybrid working policy should oblige staff to comply with rigorous information and cyber security measures when working from home.
When entering into hybrid working arrangements with staff, employers need to ensure that relevant provisions of the employment contract are updated as necessary to allow for and reflect new models of working. Where changes to contractual terms and conditions are required, unless there is a specific flexibility clause on which the employer is able to rely, it is likely that employee consent will be required. In addition, company policies (for example, absence/sick leave, appraisal, disciplinary, performance management etc.) are also likely to require updating, and it is likely to be beneficial to introduce a specific hybrid working policy clearly outlining what is expected of employees. Employers should bear in mind that
For businesses in certain sectors (e.g. financial services and legal) it is also important to consider any applicable regulatory requirements that may be impacted by the proposed model of hybrid working, and ensure that measures are put in place to mitigate any risks.
Law firms, for example, must be able to satisfy themselves that they have appropriate and adequate measures in place to ensure they can effectively supervise their trainee and other junior solicitors when working remotely. The SRA has recently produced some guidance (available here) which sets out some areas of good practice that firms and organisations should consider when deciding future working arrangements to ensure that they are meeting their requirements in this regard.
Deciding on a future way of working (whether hybrid or otherwise) is undoubtedly a major organisational decision involving a tricky balancing of a wide array of factors. It is, however, also a potentially exciting opportunity to revamp working practices in a way that works for both the business and its people. By carefully considering the potential implications at the outset, and implementing new working practices in a prudent manner (including, for example, with a trial period and supportive technology in place) you can maximise the likelihood that it will be a success.
If you are an employer and would like to discuss your obligations and considerations in relation to your proposed future hybrid working arrangements, or you have any other questions arising from this alert, please contact our Partner and General Counsel, Beth Hale, who specialises in employment and partnership issues for multinational employers, senior executives, partnerships and partners.
 Dobson v North Cumbria Integrated Care NHS Foundation Trust