Employers: Here’s What You Need to Know About Hybrid Working
As the UK continues to move away from Covid-19 restrictions, many people are wondering whether the way we work will have changed forever. Many have set up a home office, and are reluctant to go back to office working, particularly with the commute in mind. Others have found working at home lonely and challenging, with too many distractions present. With so many different mindsets, from both employers and employees, the term ‘hybrid work’ has been coined, as many of us become keen to see a mix of working from home and spending time at the office.
However, for some employers, hybrid working is a relatively new concept – and many are unsure when it comes to their obligations and rights in relation to requests for home working and their remote employees in general.
Here, we’ve explored some of the questions we are frequently being asked around hybrid working.
What questions can I ask my employees about their home arrangements?
As an employer, you’ll naturally want to be satisfied that your employee has a suitable place to work at home and can ensure domestic and family commitments do not intrude into their working time.
Usually, you might steer clear of asking express questions about childcare, but before a homeworking or hybrid working request is approved, it may be essential for you to know that appropriate arrangements have been made. An employee cannot simultaneously work and care for a very young child, so in this context you are perfectly entitled to ask pertinent questions.
The same questions relating to domestic and family commitments must be asked of employees regardless of their gender, however, to avoid potential accusations of discrimination.
As an employer, can I insist that my employees work at home?
If working from home is a clear requirement of the contract at the outset, then yes. If you want to impose homeworking or hybrid working at a later date, this will constitute a variation of the contract, and will therefore require consent from your employee.
As a last resort – if circumstances mean you must impose homeworking or hybrid working but you cannot obtain employee consent – you can offer “new terms for old”. Here, you would dismiss the employee and offer a new contract to take effect at the end of the notice period. However, unless the business reasons for making the change are compelling, it will be difficult to defend any subsequent unfair dismissal claim.
Do I have to allow homeworking or hybrid working?
Although employees generally do not have a right to work at home, in certain circumstances you must give due consideration to requests to do so, for example :
- Where an employee puts in a formal flexible working request and is eligible to work flexibly under the statutory flexible working scheme.
- Where a claim of sex, disability or age discrimination is possible, in which case you will need to be able to objectively justify a refusal.
What if all my employees want to work from home?
If several employees request a change to home working or hybrid working and not all the requests can be accommodated, unfortunately there is no clear answer as to who should have priority.
However, you should give preference to any employees who have statutory rights to be considered, for example employees with disabilities, employees eligible under the flexible working legislation and employees who might have a sex discrimination claim (although this does not mean that you should automatically prioritise women, as this would in itself constitute sex discrimination against men), or disability discrimination claim.
Between these groups, the priorities will again depend on the exact circumstances, including the type of work the person does and whether working from home is necessary or merely convenient. A disabled employee may often have first priority, at least if this is the only reasonable way for them to carry on working. It would be a reasonable adjustment to give them priority and you should be able to defend potential claims from other staff who cannot be accommodated as a result.
In the case of two competing flexible working requests, unless there is a good business reason to differentiate between the two, you can only be expected to deal with requests in the order you receive them. You should consider each request fairly and without discrimination, taking reasonable steps to accommodate requests, and could perhaps establish a waiting list.
Can I suggest a trial period?
In cases where there is no certainty that the proposed arrangement will work, it might be better and safer to agree a trial period rather than simply to reject the employee’s request. Both parties should agree from the outset the length of the trial period and the conditions by which its success or failure will be judged.
Author: Anna Nelson, Employment Law Advisor at Howarths
Got any questions? Get in touch with our Employment Law Team today on 01274 864 999.
