Hybrid Working: Should You Do It?

Posted by Setfords Solicitors on 13th August 2021 -

With the lifting of the restrictions, many businesses may be facing requests from staff to stay working from home or on a split basis between the workplace and their home (otherwise known as hybrid working). The key is to be prepared now, before a request is received, rather than being taken unawares by a request in the future.

How can this be done?

Essentially, by knowing your business and assessing how well (or not, as the case might be) working from home has impacted it both during the pandemic and going forward.

What’s the first step?

Perform a review of your business on a very practical level to determine which roles or which parts of those roles could be performed from home and whether you could accommodate some form of remote or hybrid working.

This could include considering steps such as asking your staff how they have been coping whilst working from home (if you have not done so already) or conducting your own “behind the scenes” review of which roles have adapted well to homeworking.

Importantly, avoid making assumptions on behalf of your employees; after all, each individual will have their personal preferences surrounding the future of homeworking.

You should then arrive at a conclusion either way that:-

1. Hybrid working is possible in your business either entirely or for certain roles; or
2. It is not appropriate for your business for a sound business reason (i.e. Mrs X would not be able to work from home because she works exclusively as a factory worker).

The key is to distinguish between tasks that need to be performed in the workplace and tasks that could possibly be performed from home.

What If Hybrid Working Might Work For The Business?

Then you must update your staff handbook with a hybrid working policy so that your employees know how to make a request and so that you know how to handle a request if one is received.

Depending on the circumstances, you might need to agree the contents of this policy with employees or their representatives (such as a trade union) before you introduce it.

In any event, it is best practice to discuss it with members of staff and/or employee representatives before you introduce it. This is because it will encourage trust in the workplace and produce useful ideas for how hybrid working will work going forward.

Crucially, whether the business is able to accept a request for this type of working will depend on a variety of matters. Firstly, will its services be interrupted? Can it ensure the security of its systems and the information being passed through those systems? Can the employee’s health, safety, and wellbeing needs be met whilst they are working from home?

Once the policy has been introduced, if a request for hybrid working can be accommodated (either in whole or in part), it is important to provide the employee with an updated contract reflecting the new working arrangements.

Lastly, suppose you are uncertain about whether the new working arrangements will be practical or not for the business and/or for the employee. In that case, you could trial them for up to three months before making a final decision on their effectiveness.

What If Hybrid Working Could Work In My Business, But I Don’t Want To Adopt It?

Hybrid working is part of flexible working, which an employer is required to seriously consider if a member of staff is an employee with at least 26 weeks’ continuous service and/or subject to the employer’s own policies.

Therefore, you will need to provide a good reason for declining a request, rather than simply declining it outright.

The general reasons for declining a request are:-

• If it would cost the business too much;
• If it would have a negative impact on meeting your customers’ needs;
• If work could not be reorganised amongst your existing staff;
• If you are not able to recruit additional staff to cover any work;
• If the quality of your services would suffer for it;
• If the employee’s performance or someone else’s performance would suffer for it;
• If there isn’t enough work to support it;
• If you already have changes in mind for the business that would affect the request (such as a restructure or redundancy situation); and
• If the Government introduces any other reasons.

Hybrid working requests are likely to be received and considered on an individual basis, so each request will need to be considered on its own merits. If the business cannot accommodate a request, it will need to tailor its response beyond the broad definitions set out above.

This note is not intended to substitute legal advice from your instructed lawyer. You should always consult with your lawyer directly regarding any specific queries you may have.