Have you implemented a hybrid working policy and is it still working?

29th June 2022

Hybrid (sometimes referred to as "smart") working is now a commonplace phrase we are fairly familiar with. It is the practice of allowing staff to work at home or other locations for some of their working time and attend the workplace for the rest of it. A lot of organisations will have hybrid working policies in place now.

Sixty per cent of employers have seen hybrid working increase following the pandemic, as we have proved that morale and productivity can benefit from the added flexibility.

Twenty per cent of employees in a recent CIPD survey said their organisation allows hybrid working, but was still developing its approach and policies through testing and learning. Whether your organisation is still in the process of formulating a hybrid working policy with COVID working restrictions now completely removed, or has decided to revisit its policy in the light of experiences over the past couple of years, we have created a summary of the key points to assist you.

Do I need a policy?

Hybrid working is, by nature, often assumed by staff as being extremely flexible. It is not, however, necessarily the same as flexible working, which can include a change in the hours or times an employee is required to work. Hybrid working usually refers only to the place of work as regards home or elsewhere. A clear policy to manage expectations is essential for employers, and mitigates the risk of dissatisfaction down the line. Not specifying expectations clearly could give rise to unintended implied contractual rights which employers could be expected to maintain in the future.

A policy may also avoid the need to change the “place of work” clause as specified in an employment contract and allow employers to retain flexibility for the future, without contractually losing the option to require staff to return to the workplace. However, employers should remember that legally “place of work” must be specified in employment contracts (or “statements of particulars”). Referring to the employer’s workplace as the primary place of work, but specifying that it is subject to any hybrid working policy in force from time to time, may be a way to comply with this.

What should your policy include?

1. Expectations

Some employers introducing policies for the first time are considering what split they want from employees as between home and other locations. Other employers which have had policies in place for a while might be looking to change this, based on what appears to have worked and not worked since they first introduced their policies. Specifying set days of the week could lead to unintentional prejudice. For part-time workers, specifying that all employees should spend Mondays and Wednesdays in the office, for example, may mean a part-time employee who only works Monday to Wednesday is essentially spending much more of their working week in the office. This could lead to indirect discrimination claims, especially considering the part-time workforce remains predominantly female. Having some flexibility is therefore preferable, as some employees may have genuine reasons for requesting more time in one place, perhaps for health reasons. Policies should not be so stringent as to put those employees at a disadvantage, as discrimination claims could arise.

Employers should also set out their requirements for remote working – is the employee only permitted to work from their home? Could they work in a café? Working in a public space may bring data protection concerns. Employers will be considering this more, now these spaces are more available than at the height of the pandemic.

2. Who will pay for what?

Employers may now be reconsidering what costs associated with home working they will be liable for. Is equipment paid for by the organisation, or is the employee liable for any of the cost (e.g. repairs and maintenance)? Does the equipment fall under the organisation’s existing insurance policy, and if not, is the employee expected to take out appropriate insurance? This may be something to revisit, now we are not constrained to working from home full time.

Employers must be clear who pays for travel costs on days where employees are commuting to the office, and adjust their policies accordingly.

On the other hand, utility costs (such as internet connections, heating, lighting etc) should be a key consideration for employers in the coming months, and indeed have been one of the major gaps in existing policies. Given the cost of living squeeze, specifying exactly what contributions an employer is prepared to make towards these costs (considering the savings employers are likely to be making where employees can work from home) will be increasingly essential for employers as they look to recruit and retain talent (although tax implications should not be forgotten).

3. Security?

As above, employers will want to ensure all equipment and data is secure when employees are working remotely. Have your employees been trained in this area? If not, employers should look to include this in their policy. Moving between home and the office carries obvious risks in this department, and it is essential for employers to manage this in line with their data protection policies. Employers must also consider potential risks from others e.g. members of an employee’s household and ensure that security is not overlooked simply because the employee is at home.

The Information Commissioners Office has published this useful checklist which may assist.

4. Managing employees at home

Employers should clearly set out how they will manage employees at home. Your organisation may have decided it needs to monitor employees remotely, but detailed consideration should be given as to what is meant by “monitoring” and what, if any, data protection implications/compliance requirements there are. What current management/mentoring procedures are in place, and should you consider updating these? Both monitoring and management should be reflected in the policy.

With all employees, employers may wish to consider how training will take place. It is important to ensure all employees receive appropriate training, to avoid any disadvantage. Other opportunities such as team-building and social activities may need revisiting, and employers should ensure no one is missing out on such activities. In addition, remember that working from home can mean a lack of interaction and contact, potentially increasing the risk of people feeling lonely or isolated. Please see our recent article on how to tackle loneliness at work.

Other considerations

It has now been two years since the pandemic began, and employers are now gaining more understanding into how hybrid working works for their organisation. With both contractual and policy changes, consultation should take place with employees as to what works for them and how this may fit the business’ needs. Organisations will want employees to agree with any changes, and obtaining feedback before implementation is good practice. Managers should be appropriately trained in how to supervise remotely, ensuring that all employees are being appropriately supported, regardless of their place of work.

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