Firstly, a huge proportion of employment contracts are now outdated because they don’t account for remote working. Your standard employment contract may cite the office as the place of work, but if your team is predominantly based at home, or splits time between work and the office the contract is technically incorrect.
Adjusting to the new normal:
Keep in mind that s.14(4)(h) Employment Rights Act 1996 requires that the statement of particulars includes “place of work”. It is important not just to consider where your employees work, but also how.
Think about what the contractual arrangements are in terms of core working hours and key responsibilities. As flexible working looks to be a permanent fixture, this lack of clarity in contracts leaves businesses more vulnerable and open to dispute.
Not accurately reflecting the place of work in the contract could lead to a difficult sticking point were a re-structure or redundancy projects could commence.
Time will be lost engaging in due diligence to understand what is the place of work, as there is a mismatch between the contract and what occurs in practice. Employees may suggest there has been a fundamental breach of their contract of employment and look to claim constructive unfair dismissal.
To avoid this, I would advise completing a thorough due diligence exercise led by an employment professional, and then consulting with staff if you choose to amend their contract of employment.
Some employers may rely on “custom and practice” which might have been sufficient at the height of lockdown, however it is not practical to let current informal arrangements drift on indefinitely.
Adapting your HR offering
Amidst the various government lockdowns, many businesses perceived a hybrid model as temporary, and as a result did not feel the need to make changes to working practices. But, if remote workers are going to be a permanent component, HR teams cannot let this drift and need to think seriously about how they can support employees going forward.
Key considerations should be revisited and employers should be asking themselves:
- Does the contract reflect the long-term arrangements in practice?
- Have you fully consulted prior to any changes?
- Are employees working reasonable hours? How is the business helping them to step away and shut off outside of working hours?
- Do employees have all the equipment reasonably required to complete their work, such as a laptop, computer peripherals and phone?
- Have we communicated clearly with employees on their data protection and confidentiality obligations now that they are at home?
- Am I confident employees are working in a safe environment? What is being done to facilitate this?
Asking yourself these questions and taking the necessary steps will not only lead to a healthier and happy workforce but can also help to mitigate future problems were a disgruntled employee to dispute terms of a dismissal or speak out negatively about the business.
In the coming years, we can expect more guidance and legislation on what support employers are obligated to provide for remote workers, such as providing ergonomic chairs, support with printing costs, WiFi or electricity bills. It’s worth keeping this in mind for future planning.
Implementing ‘office days’
Ensuring there is a strong sense of community within your business is a high priority for many businesses and one common strategy to achieve this in a hybrid model are ‘office days’ where the majority of, if not all, the workforce is expected to work together in-person.
If you are going ahead with this, it is important to be understanding and considerate of reasons why some employees may not feel comfortable with this. They could have safety concerns, have seen major changes to their personal circumstances or believe what is now expected of them has changed.
After listening to their concerns, you can then take all reasonable steps to alleviate them, whether it is centred around rigid covid measures or a review of employment contracts.
Identifying these issues early-on will provide more clarity on how your business’ hybrid working model works in practice and mitigate the risk of future legal headaches.
Kimberley Barrett-St. Vall, partner and employment lawyer, Napthens