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Hybrid working: five key employment law considerations for employers 

If there is one positive we can take from the pandemic, it is adaptability in the workplace. From working at home, to varying hours in order to juggle home-schooling and/or caring responsibilities, flexibility and adaptability at work have been critical to surviving the pandemic which has proved to many employers that remote and hybrid working do not necessarily equate to less productivity. 

Many employers will never return to pre-pandemic ways of working. However transitioning to effective hybrid working requires planning and organisation. Employers will need to embrace and adapt to this reality while protecting themselves from legal risk. 

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Key employment law considerations for employers applying a hybrid workplace model include: 

Avoiding discrimination

Given some employees will choose to spend more of their time in the physical workplace than others, it will be critical for employers to ensure that those who spend more time working remotely (who are likely – though not necessarily – to be those with disabilities or caring responsibilities) are not treated less favourably than those who spend more time in the office.

Employers should avoid, for example, making decisions with regard to promotion based on a person’s visibility/presence in the physical workplace. Any policy or practice which disadvantages those working remotely is likely to place those with protected characteristics at a particular disadvantage which may expose the employer to discrimination claims.

Implementing flexible working

A return to the office may result in an increased number of formal flexible working requests from employees, particularly from those who wish to continue the working arrangements they felt worked better for them during the lockdown periods. Employers minded to accept such requests should ensure that the new arrangements are properly documented. 

Although some may say that it will be difficult for employers to reject requests for flexible working arrangements to continue (because they 'worked' during lockdown), it is important not to overstate this point.

There is (currently) no legal right to work flexibly and, as long as employers consider such requests properly in line with the relevant procedure, they may well reject them provided they do so on one of the eight permitted grounds. 

The key will be consistency of approach between individuals while also recognising their particular role and circumstances and the needs of the business/employer.

The government is currently consulting on proposed changes to the law which would allow employees to make a flexible working request from the start of employment (employees currently need to have at least 26 weeks’ continuous service before they can make such a request) and also allow employees to make more than one request within a 12-month period. It will be interesting to see what impact these changes will have, if implemented.

Protecting confidential information

All employees have an implied duty of confidentiality with regard to the confidential information of their employer and its business and most have express provisions in their employment contract confirming and expanding on this.

This duty is particularly difficult to police when employees are working remotely. 

Employers should consider what measures and requirements they will need to put in place to protect their confidential information as much as possible in the new world of hybrid work and to ensure that their policies and contracts incorporate those measures.

For example, to explicitly state that employees working remotely can only work from home and/or must put in place certain measures to keep confidential information safe and not accessible by others in their household (e.g. having a secure/locked cabinet for storing documents, or a shredder for destroying them safely).

Protecting health and safety

Employers have common law and statutory duties regarding the physical and mental health of their employees. These duties will need to be borne in mind when moving towards a hybrid working model. Employers should revisit any health and safety risk assessments carried out when employees first began to work remotely on what was then thought to be a temporary basis.

Health and safety policies will also need to be reviewed and updated to take account of new working practices (for example, with regard to how accidents or injuries should be reported).

Thought should be given to the mental health and wellbeing of employees and how to help them set boundaries between work and home life when working remotely. There were reports earlier in the year of growing pressure on the government to legislate for a right to disconnect, but that does not appear to be on the immediate agenda. 

Avoiding sexual harassment and third-party harassment

As we saw during the pandemic, sexual misconduct and harassment can occur in the virtual workplace just as it can in the physical workplace.

Examples of sexual harassment experienced during the pandemic included personal contact information being obtained from WhatsApp groups set up for work purposes and then used to harass individuals, sending phallic emojis/images and taking and sharing screenshots of virtual meetings.

Relevant internal policies (including bullying and harassment policy and disciplinary policy) should be updated so that the standard of behaviour expected of employees is clear, whatever their working environment. Managers should also be encouraged to have regular catch-ups with individuals in their team and be able to identify and act upon any issues.

In relation to possible third-party harassment, communications with clients and suppliers, should make it clear that the employer will not tolerate such behaviour against their staff.

On this point, the government has announced (in its response to its consultation on sexual harassment in the workplace) an intention to change the law to introduce a duty on employers to prevent sexual harassment, including from third parties (such as customers and suppliers).

It will be interesting to see what those duties will look like and how they will be applied in the context of a hybrid workplace. Employers will be well advised to keep abreast of the changes and to tailor their policies and practices accordingly.

Protecting businesses from these risks will not only include updating internal policies to tailor them for long term remote working but also training managers in order to implement the guidelines. While hybrid working is not practical for all businesses, for many the new reality is that the future workplace is a hybrid workplace.

By Moira Campbell, senior associate in the Employment team at Kingsley Napley