1 April 2022 by Neil Johnston

What should employers look out for when navigating the world of hybrid working?

At Bolt Burdon, we have very much enjoyed getting back into the office and seeing our colleagues once again. Our firm recognises the benefits of office working and has always operated a flexible approach to home working (see Louise Dawson’s recent blog).

As we move out of the pandemic, what should employers have in mind as they grapple with the issues thrown up by a commitment to, or requests for, hybrid / flexible working?

Flexible working requests

Employees are currently entitled to apply for flexible working after 26 weeks’ continuous employment. However, the Government is considering whether this should be changed to a ‘day 1 right’ and we will keep you posted on developments here.

Traditionally, flexible working requests have entailed changes to working hours and patterns of work. However, employers are now facing flexible working requests from employees who do not want any change in their working pattern or hours, but simply want to work from home either full time or on a ‘hybrid’ basis.

Employers must ensure that they deal with flexible working requests in a “reasonable manner” and within prescribed deadlines. Failure to deal with requests fairly and, for the most part, consistently across the workforce, risks complaints from disgruntled employees and allegations of constructive dismissal or discrimination.

Employers should be alive to arguments from employees who may point out that they have successfully managed home working during the covid-19 pandemic, and therefore, an assertion that homeworking is not sustainable cannot be genuine or fair.  A well thought out, fair and relevant home working policy will help to both diffuse any issues arising in real time and protect the business from potential complaints and litigation.

Discrimination

Employers should be careful when considering flexible working requests to avoid discrimination.

This can take various forms –  whether a woman requesting a change in working pattern to manage childcare; a disabled person requesting home working as a reasonable adjustment or an older, more experienced or senior person requesting home working.

All of these issues can be difficult to navigate, particularly given the home working arrangements that have been in place for many over the past two years.  Expert advice should be sought to ensure compliance with equality legislation and to ensure that measures put in place, or the justification for not, are reasonable, proportionate and for the right purpose.

Confidentiality

Working from home creates issues with confidentiality.  Confidential business information is more at risk of being seen by family / housemates / visitors / tradespeople attending the employee’s home or overhearing phone/video calls.  Other employees may be working in coffee shops or other public locations.

Employers should have clear policies setting out expectations and requirements for employees, dealing with data security, storage and return of confidential documents.  In some cases, contracts of employment may need updating, for which express agreement from the employee is likely to be required.

Stress

Some employees may have felt lonely, isolated and stressed as a result of home working during the pandemic and may be pleased to be returning to the office where they can share ideas and access in-person support and supervision.

Others, who may have found it easier to achieve better concentration and productivity and a better work life balance, may find the requirement to commute and working in open plan office environments to be stressful, especially if their workload increased during the pandemic in line with their increased productivity levels.

We expect that most employees will fall somewhere in the middle here but, when dealing with those who do not, a stress risk assessment will help identify triggers and potential solutions.

At Bolt Burdon, we are helping both employers and employees in dealing with flexible working / hybrid working requests and, if you need assistance, please do not hesitate to contact Neil Johnston or Susanna Spencer.

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