Hybrid working – remember the 3 C's
As we approach the end of the Furlough scheme and businesses are trying to return to something like their previous way of working, the term ‘Hybrid Working’ has become something of a buzz phrase. Employers should not be scared of the term because in fact hybrid working is simply a form of Flexible Working, for which there are already rules in place.
An employment contract is, first and foremost, a contract, and therefore it creates rights and obligations on both parties. Usually, place of performance of a contract is an essential term. So, if the contract says the employee’s workplace is in the office on the High Street, as an employer you can require them to come in and get on with it. Simple, right? Of course not. Employment contracts are unusual, if not unique, in that the contractual relationship is heavily impacted upon by external legislation and regulation, more so than virtually any other type of contract.
One of those external rules is Flexible Working. The basic rule is that any employee who has 26 weeks or more service has the right to request flexible working, ie a change to their hours of work, place of work or other working arrangements. An employer is not legally bound to agree to any change, but there is a duty to consider the request and if it going to be refused, the employer should have reasonable grounds for doing so. Unreasonable refusal could lead to challenge and if the ultimate outcome of refusal is either termination or resignation, the reasonableness of that refusal could be a key issue in tribunal proceedings.
This is where the 3 C's come in. Any employee wanting to change their working arrangements must request that in writing. If you as an employer gets such a request the first C is to Consider that request. You must do so in light of the potential significance of the change requested – it goes without saying that refusing a minor change will be much harder to justify than refusing a more substantial one. You must consider the impact on the business, whether it would impact on the effectiveness of the employee to discharge their duties, how it affects the personal circumstances of the employee and how it might affect co-workers. A larger employer, with more resource, will inevitably have a more difficult task in justifying any refusal.
The second C is to Consult with the employee to try to establish the reasons behind their request as that may have a bearing on your decision. It also allows you an opportunity to discuss alternatives that might allow you to make some changes that are acceptable to both.
Thirdly, once you have reached your decision it is vital to Communicate that decision effectively. In particular if you are refusing the request, you must make your reasons for doing so clear so that the employee has a full understanding of the position.
Of course you will never be able to please everyone, but if you follow these simple steps in any process, you will be conducting a fair and open process and that can go a long way in protecting you against any claims.