Hybrid working is here to stay - are you ready?





With hybrid working being encouraged, and potentially being legislated on in the near future, and the onus being placed on employers to work out what’s best for them and their staff, here’s why you should introduce a Home and Hybrid Working Policy as soon as possible.

With guidance urging people to work from home wherever possible in Scotland being relaxed in favour of a ‘hybrid’ system of office and remote working. Employers have been asked to phase workers back into spending some time in the office from 31 January 2022.

There will be many businesses who are unlikely to go back to working as they used to, pre pandemic. Indeed, it is now common to see jobs being advertised as being ‘hybrid’ roles.

With CBI Scotland stating:

‘Hybrid working is here to stay for many firms. Its up to them and their staff to work together to maximise the benefits of a balanced approach’.

But with the onus being on employers to work out what’s best for them and their staff, I thought it would be useful to provide some clarity on the issue and outline the legal obligations for employers. Details which don’t make the headlines are things like risk assessing someone’s homes, making sure they have suitable workspace, providing furniture, what if they don’t have broadband?

We don’t have answers to some of these questions at this stage. But here is what we do know and as we all adapt to this new way of working, I hope that this provides you with useful guidance for you and your employees.

But before we go into detail, I start this article in the same way that I end it. With relation to hybrid working, the first thing that I would recommend that you as an employer should do, is to introduce a clear policy which explains how working from home or hybrid working is addressed within your organisation.

What is hybrid working?

Hybrid working is a type of flexible working where an employee splits their time between the workplace and remote working.

Working from home is the most common way of working remotely.

An employee might work from home all the time, or as part of a hybrid working arrangement.

Employees can ask to work from home

An employee can ask their employer about:

  • Working from home for the first time.

  • Changing how often they come into the workplace.

  • Continuing to work from home.

Have a relevant policy in place

A relevant homeworking, hybrid working, or flexible working policy can explain how things work in your organisation. A policy can help you to consider requests appropriately and to make transparent, fair and objective decisions. A policy will also clearly explain the process to your employees.

Working from home can be considered alongside other types of flexible working – for example, different working patterns.

Arrangements for home and hybrid working

You could have different arrangements depending on the role and the needs of your employees. Discuss which roles can and cannot be done from home and who may or may not want to work from home and discuss any concerns and how best to handle them.

For example, you might need some roles based full-time in the workplace. Some might work 3 days in the workplace, 2 days remotely. Others might work from home most of the time, coming into the workplace only occasionally.

Think about how employment contracts might be affected and consult with your employees and their representatives.

Considering employees

Discuss your employee's needs and consider how you can support them.

For example, consider:

  • Any reasonable adjustments

  • Their home working environment

  • Any caring responsibilities

  • Other flexible working needs

You must avoid generalising or making assumptions. Just because you think someone would prefer to work more from home is not the way to think about it. Individuals will have many reasons for either choice. They may want to come to work to feel more included and less isolated or want to be at home more because they can then work round caring responsibilities better. If you have a clear approach to considering each individual request against a consistent formula, your employees will have a better understanding of any decision made.

Considering roles

Think about whether work could be done remotely or if it needs to be done in the workplace. For example:

  • If technology could help

  • How teams communicate

  • If there are any concerns about health and safety, and how to address them

  • Why a task needs to be carried out in the workplace

Think about how important it is for work to be done at a specific time. For example:

  • If there are core times that employees need to work together

  • How often should teams meet in person

  • If a client or stakeholder expects meetings or work to be done at specific times

  • How you manage the maximum number of hours an employee can work

  • How you encourage employees to take rest breaks

Can employees make a formal request?

If an employee has worked for at least 26 weeks, they can make a formal flexible working request. If the employee is disabled, they could ask to work from home as a 'reasonable adjustment'.

How should employers deal with requests for home and hybrid working?

As an employer, an employee might ask you about working from home or hybrid working. You should consider their request.

Make sure you know why they're asking; they could be making a request for ‘a reasonable adjustment’ under the law (Equality Act 2010).

If someone asks in writing to change the terms and conditions of their employment, this might be a formal flexible working request. You must respond to flexible working requests appropriately.

You should consider the benefits

Working from home and hybrid working can help to:

  • Increase productivity and job satisfaction

  • Attract and retain a more diverse workforce

  • Improve trust and working relationships

When considering working from home and hybrid working, you should discuss how other types of flexible working might help. For example, different working patterns.

Trial periods

You could agree to try working from home or hybrid working for a short amount of time, as a 'trial period'. This would allow you to see how it works and whether any adjustments need to be discussed and if there's more or less flexibility than originally expected.

Before you begin a trial period, you should agree what might happen at the end of the trial period and how it will be reviewed.

Other options

You might not currently be able to support the same working from home or hybrid working arrangements for every role in your organisation. You should discuss alternatives with employees, for example:

  • Working in other locations

  • Different working patterns

  • Other ways of flexible working

These alternatives could help to reduce feelings of unfairness. You should regularly review things, as you may be able to support different arrangements in the future.

Health safety and wellbeing when working from home

Employers are responsible for their employees' health, safety and wellbeing, both when they are in the workplace and when they work remotely (including working from home).

Employee responsibilities

Employees have a responsibility to take reasonable care of their own health and safety at work.

Anyone who works from home should keep in regular contact with their manager. They should also tell their manager about:

  • Any physical or mental health and safety risks.

  • Any working arrangements that need to change – for example, because of caring responsibilities.

Employees and managers should communicate regularly and work together to find solutions.

Risk assessments for working from home

By law, employers must conduct a 'suitable and sufficient' risk assessment of their employees' working environment.

If an employer is not able to carry out a full risk assessment, they should provide their employees with information on working safely at home. This could include asking them to carry out a self-assessment of their workspace and equipment.

If changes are needed to make sure an employee can work at home in a safe and healthy way, employers are responsible for making sure they happen.

Employers should review risk assessments regularly to make sure their employees' working environments remain safe and healthy.

Checking insurance cover

Make sure your insurance covers employees working from home.

You should also remind your employees to check that there are no issues with them working from home. Employees should check with their home insurer and their mortgage provider or landlord.

Mental and physical health when working from home

Employers should pay attention to the mental and physical health of their employees. Everyone should be encouraged to look after their health – for example, by getting support and doing regular exercise.

Employers should not make assumptions. They should speak with their staff and agree on what support may be needed – for example, if an employee with a disability needs reasonable adjustments.

Disability

Mental and physical health issues can be considered disabilities under the law (Equality Act 2010). Employers must make 'reasonable adjustments' for employees who are disabled.

Mental health

During the pandemic more people have been struggling with their mental health. This might include increased stress or anxiety. People who work from home might experience loneliness.

Employers should think about how to support their employees' mental health and wellbeing. They should talk to them about any problems they might be having.

Stress from changes at work

Employees can find change stressful, including changes in working from home and hybrid working.

Employers can help to reduce stress by helping an employee to:

  • Agree regular contact

  • Avoid feeling left out and lonely

  • Feel trusted and supported

  • Know how to get help with their mental health

  • Know how to report IT issues

  • Know what is expected of them, when working from home

Physical health

Employers should make sure their employees have the necessary equipment and information to work safely. Employees might experience pain if they do not have the right working equipment – for example, they might have back problems caused by an unsuitable chair and desk.

Employers must protect staff from any health risks from using 'display screen equipment' (for example, computers, laptops or smartphones).

Work-life balance

When staff are working from home, they can find it hard to switch off from work and are working longer hours.

Employers must follow the law on working hours. Employees have a right to rest breaks and should make sure they take them.

Employees might find it helpful to have clear start and finish times, switch off their work equipment at the end of the working day and to take regular rest breaks away from a screen.


Sickness

Employees who work from home can feel pressure to work while ill. This is sometimes called 'presenteeism'. Employers should encourage them to take sick leave when they're ill.

Employees should make sure they know what sick pay and leave they're entitled to and to take sick leave if they're not well enough to work.

Bullying and harassment when working from home

Bullying and harassment can still happen when employees are working from home. For example, through social media, emails, phone calls or online chat.

Employers should include guidance on use of different communication methods, including social media, in bullying or disciplinary policies. This should clearly set out what behaviour is unacceptable.

Domestic violence and abuse

During the pandemic, there has been an increase in domestic violence and abuse. It has also become more difficult for people to get away from the person abusing them.

Employers have a legal duty of care to their employees and should:

  • Look out for signs of domestic abuse

  • Respond appropriately

  • Support someone who is experiencing domestic abuse

  • Keep a record of incidents at work and when employees report domestic abuse, and any actions taken.

Employers should make clear what support is available if an employee is experiencing domestic abuse, such as:

  • Finding a way to communicate safely, for example by text message if calls are not possible, or a different email address if their email is being monitored by the perpetrator

  • Agreeing on a code word or hand signal for someone to use to alert others that they're experiencing domestic abuse

  • Arranging another place they can do their work instead of at home

  • Being flexible around working hours

  • Time off, for example to attend support appointments

  • Helping the person get other appropriate support

Employers should consider having a domestic abuse policy.

Disagreements about home and hybrid working

Employees and employers might disagree about working from home and hybrid working.

For example, some people who have been working from home during the pandemic might want to continue working from home. Some employers might want them to return to the workplace.

Everyone should follow government advice and discuss their concerns, including any representatives (for example, a recognised trade union). You should try to find a solution together.

Treat staff fairly in home and hybrid working

Employers should treat staff fairly and equally. Do not disadvantage anyone who is working from home or hybrid working.

Wherever an employee is working, you should give them access to the same support and opportunities for training, development and promotion. Do not give people better or worse jobs depending on where they work.

Line managers should communicate regularly with everyone they manage. An employee should not miss out on anything because of where they work. For example, schedule meetings or use technology to make sure everyone can take part in conversations and activities.

Discrimination and the law

You must not disadvantage an employee because of a 'protected characteristic' – for example, if they are older or disabled.

For example, an employer accepts a hybrid working request from a male employee who has children. The employer refuses a similar request from a female employee because they think she'll be distracted by her children. This is 'direct discrimination'.

You must not implement a policy or practice which has a disproportionate impact on people with a protected characteristic unless you can prove a good business reason, 'objective justification'.

For example, an employer does not allow anyone in a particular role to work from home. This disadvantages an employee who is disabled and finds it difficult to travel to the workplace every day. The employer does not have a good business reason for this decision. This is 'indirect discrimination'.

If an employee is disabled, you must make reasonable adjustments when they are in the workplace and working remotely.

SUMMARY

As you will see from this article, and like most things related to employment law, there is much more to a topic than first meets the eye and there are a multitude of factors to consider.

In relation to hybrid working, the first thing that I would recommend employers should do is to create a policy which explains how working from home or hybrid working is addressed in your organisation. This should outline how things work and have limits, but it should also allow for flexibility.

If you would like to discuss the issue with me or need help to structure and implement a policy for home and hybrid working in your workplace, please do not hesitate to get in touch with me. With the new Employment Bill stipulating that flexible working will become the default position and a right from day one, there is no doubt whatsoever that flexible working is here to stay.




#BordersEmploymentLaw #hybridworking #WFH #EmploymentBill #FlexibleWorking



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