Hybrid Working – Key points for Employers

Since the Coronavirus pandemic struck and the recovery began, it has become commonplace to allow employees to split their working time between their “normal” workplace i.e., the office and an agreed remote working location, normally their home.  Specific arrangements will differ depending on the nature of an employee’s role and their duties.

Hybrid working arrangements are increasingly becoming an expectation of employees, with employees placing a similar importance on such flexibility as overall remuneration when evaluating career opportunities. Accordingly, hybrid working is a concept most employers should not shy away from.

Such arrangements may lead employers to fear they are losing both connection to and control of their workforce. However, this does not need to be the case if the correct communication channels are implemented. Additionally, hybrid working arrangements are normally discretionary (i.e., non contractual) and subject to ongoing review and agreement by management meaning the arrangement can be withdrawn if abused by employees or not working for any other operational reason.

Can hybrid working apply to all roles?

No - not all roles/jobs are suitable for hybrid working. Hybrid working is unlikely to be feasible: -

• if an employee needs to be present in the workplace to perform their job, for example, perhaps it involves a high degree of personal interaction with colleagues or third parties or involves equipment that is only available in the workplace;
• if an employee’s most recent appraisal identifies any aspect that they are underperforming, their work is unsatisfactory or they have an unexpired warning whether in relation to conduct or performance; and/ or
• if an employee needs training and/or supervision to deliver an acceptable quality or quantity of work.

What conditions are necessary for hybrid working to work?

Prior to the pandemic, our advice would have been to make any hybrid working arrangement subject to a trial period to ensure both the employer and employee are comfortable with the arrangements and that they work for and benefit both parties. However, the pandemic has tested the viability of remote working in many circumstances and accordingly, where it theoretically works, we recommend that employees working under a hybrid working arrangement should: -

• have a suitable working environment at their remote working location that enables them to carry out their role effectively;
• continue to work the hours required by their contract of employment;
• be able to work independently, motivate themselves and use their own initiative;
• be able to manage their workload effectively and complete work to set deadlines;
• be able to identify any new difficulties caused by working from their remote working location and resolve them;
• regularly maintain contact with their line manager and colleagues;
• make themselves available to attend the workplace for meetings, training or other events which they would normally expect to attend; and
• (if the business needs change) be willing to change their working location.

Employees should be warned that a failure to adhere to any of the above mentioned conditions may lead to the withdrawal of their specific hybrid working relationship at the absolute discretion of the employer.

Does it matter where the remote working location is?

It is recommended that a flexible working base is within commuting distance of the normal workplace so that employees can easily attend the office as and when required and certainly within the same country. Many employers do not realise that there are various additional compliance requirements that are associated with working overseas, including, but not limited to compliance with local employment/health and safety legislation and tax and social security deduction regimes, which are often administratively burdensome and expensive.

What about staff management, training, and workplace attendance?

Employees will be subject to the same performance measures, processes and objectives that would normally apply if they worked permanently in the workplace and should also be provided with the same opportunities for training, development and promotion as staff who are exclusively office based. Employers may need to be a little more creative regarding how they implement employee management. For example, convening supervisions virtually and using PDR software where face to face contact is infrequent and online clock in systems to record where staff are working from and between what times.

As regards performance, it is sensible to clarify, within a hybrid working contractual clause or policy, that if an employee receives an unsatisfactory performance review or a verbal or written warning, their hybrid working arrangements may be terminated immediately and they may be required to return to working from the office immediately. 

What health and safety obligations do employers have to remote workers?

Employees working from their remote working location must take reasonable care of their own health and safety.  They will be required to identify potential health and safety hazards and minimise risks. Notwithstanding this, employers have the right to carry out a health and safety risk assessment at an employee’s remote working location and ultimately remain responsible for an employee’s health and safety whilst they are working. Thought should be given to ensuring employees have suitable chairs and are using Display Screen Equipment safely. Employees should also be prohibited from holding meetings at their remote working location with customers/clients and told not to reveal their address or telephone number of their remote working location. Furthermore, with the risk of a greater blurring of working and personal life, line managers should monitor working patterns and ensure levels of work are not detrimental to their health and wellbeing.

What equipment do I need to provide to employees who are working remotely?

Most employers will provide employees with the necessary equipment to work from their remote working location.  The employer may require their IT department to arrange installation at an employee’s remote working location or offer guidance remotely to guide them through the necessary processes. Employees must normally also be asked to ensure that equipment used for remote working: -

• is only used by themselves and for the purposes of which it has been provided.
• is used with reasonable care in accordance with operating instructions or other policies and procedures provided by the employer.
• is kept secure, particularly when travelling between work locations.

Employers may also need to provide employees with a disability with any special equipment required to enable them to work from their remote working location or, at least, contribute to the cost.

Employers are not normally responsible for the associated costs of employees working from their remote working location including heating, lighting, broadband internet access and telephone.

Does an employer need to take out an insurance policy to cover remote workers?

Employers should check to ensure that their employer’s liability insurance covers the risk of employees having an accident whilst working remotely. Employees should also be asked to check that working from home will not potentially invalidate the terms of their home insurance, mortgage, lease, or rental agreement and to inform their home and contents insurance provider of their remote/hybrid working arrangements as required.

Data Protection and hybrid working

Employers must be satisfied that all reasonable precautions are being taken to maintain confidentiality of material in accordance with their requirements and therefore need to make

employees responsible for ensuring the security of confidential information and protection of personal data in their remote working location and when travelling to and from the office.

When working from a remote working location employees should be asked to: -

• Change passwords when prompted and comply with instructions relating to password security;
• use designated VPN or multi-factor authentication;
• install current antivirus and malware protection on any personal device or computer used for work;
• comply with instructions relating to software security and implement all updates to equipment as soon as requested to do so;
• encrypt and protect by password any confidential information held on any personal device or computer;
• keep work data and personal data separate on any personal devices used for work purposes;
• send work-related emails and messages through designated communication facilities;
• share data only through designated document sharing systems;
• make all work-related calls through designated video-conferencing software;
• maintain a private space for confidential work calls;
• ensure that any display screen equipment is positioned so that only the employee can see it or a privacy screen is used;
• lock computer terminals whenever left unattended;
• ensure no third party in a remote working location has access to confidential information stored on computer or other devices;
  • ensure any wireless network used is secure;
  • keep all papers in filing cabinets that are locked when not in use, and ensure that no one else in a remote working location has access to such papers; and
  • shred or otherwise dispose securely of confidential information when it is no longer required and always comply with instructions on document retention.

Employees should also be asked to reconfirm that they have read and understood the Company’s Privacy Notice and Data Protection Policy and other guidelines such as IT and Communications policies regarding the retention of personal data, electronic communications and data security.

How can an employer protect itself if a hybrid working arrangement does not work out?

As indicated above, employers should reserve the right to terminate the hybrid working arrangement in specific circumstances, for example, due to a change in business needs, performance concerns or if an employee’s role changes such that hybrid working is no longer suitable. Employers should make the hybrid working relationships subject to their absolute discretion to retain ultimate control of working arrangements.

If you need any further help or guidance in connection with hybrid working arrangements, please contact Heather Love at h.love@downslaw.co.uk