Hybrid and flexible working - the legal issues

As we edge towards post-pandemic life in the UK, there is uncertainty as to how workplaces up and down the country may look when coronavirus restrictions are completely lifted. Only recently a survey carried out by the British Chambers of Commerce showed that two thirds of employers will offer remote working to their employees. Organisations who responded to the survey said they expected at least half of their workforce to work remotely for some of the week.

A separate blog post by Emma Grace considers some of the advantages and disadvantages of home working, but the issue throws up a number of legal issues employers will want to consider including:

• The statutory right to request flexible working - employees who have at least 26 weeks service are able to request a more flexible working arrangement than the one they agreed to when starting work. Employers must deal with the request in a 'reasonable manner' and can only reject a request for one of eight reasons set out in the legislation.
• Discrimination claims - a refusal to allow employees to work from home at least some of the time or on the days or times the employee wants to work from home may trigger discrimination claims from employees who have one or more relevant protected characteristics (race, sex, disability, age, sexual orientation, religion and belief, marriage and civil partnership, pregnancy and maternity and gender reassignment)
• Implied term of trust and confidence - this is a term which is implied by law in all employment contracts and which requires employers not to do anything (without a reasonable and proper cause) which may seriously undermine the employment relationship. Where a request to work from home some or all of the time is refused, there is a risk this implied term may be breached, potentially allowing an employee to resign and claim constructive dismissal
• Data protection - if homeworking is granted, an employer will need to ensure the usual data protection obligations are complied with, including ensuring any personal data which is accessed or used by the employee is stored securely.   Employers will be liable for any data breaches.
• Confidentiality - home working only increases the ease with which employees can copy, misuse or inadvertently leak an organisation's confidential information.
• Health and safety / duty of care - whilst most home workers will be desk based and this is hardly the most dangerous of work, there are statutory obligations which relate to the provision of work equipment and employers continue to owe employees a duty of care. Home working has been reported as causing stress and mental health issues for some employees who work longer hours at home and struggle to switch off
• Monitoring - if an employer wants to monitor employees activity whilst they are working at home, this needs to be very carefully handled to avoid breaching the implied term of trust and confidence, data protection laws and in some cases committing a criminal offence
• Contractual position - if employers are prepared to agree to request to work from home a variation to an employee's contract will be required. The contractual position for issues such as an employee's normal place of work, hours of work and expenses will need to be documented and agreed. An employer should also ensure there is a clause entitling it to end the arrangement at any point if the employer feels the home working arrangement is no longer suitable.

Each organisation is different and will have its own ethos and way of working. What works for one organisation will not necessarily work for another, and there is no 'one size fits all' approach to this issue. Many employers will embrace home working but other employers will feel there is a significant benefit from having staff attend a single place of work for at least most of the time.

Employers, if they haven't done so already, will need to decide whether to tackle this issue head on by raising it with staff or waiting to see whether staff request home working. Most employers are likely to choose the former approach, but then issues such as which staff have to attend the workplace on which days have to be worked through.

Employers may find it difficult to get employees back into the office on a regular basis where they have worked successfully from home for more than a year. There is also legal risk in refusing requests from staff who may feel they have plenty of evidence their employer can accommodate their request.

However, managing legal risk is only one part of the equation. There is no point in an organisation granting home working requests if the organisation will then operate poorly or at least less effectively.   Legal risk can be minimised with advice and the risk of claims has to be balanced against the risks and disadvantages of allowing home working on a large scale if it is felt that will hinder the effective running of an organisation.

Even where an employer agrees to home working, employers should ensure contracts of employment are updated and the issues mentioned above are thought through and dealt with in an amended contract.

For more information about homeworking requests and varying contracts of employment where you wish to allow staff to work from home, please get in touch with Lee Whiting or your usual contact in the employment team. For a more personal view on home and flexible working, please see this blog from our employment solicitor Emma Grace.  You can also download the excerpt from our last webinar where Lee Stephens, Director and Solicitor covers the issue in detail.