Return to Work and new Acas Guidance on Hybrid Working

In advance of Scotland’s ‘Freedom Day’ on 9 August 2021, which is when certain Covid-19 restrictions are due to be scrapped and we move beyond level zero, Acas has published helpful new guidance for employers on flexible and hybrid working. 

With the Scottish Government extending working from home where possible to at least 9 August 2021 employers should be reviewing their planning around return to work models and what happens next.

Is hybrid working the new normal?

Whether you are an advocate or not, the pandemic forced many sectors into flexible working and, although it hasn’t been without its challenges, many have reaped the benefits of being able to work from their own home.  Such benefits have varied from reduced commuting costs, more leisure/family time and a better work/life balance generally. Some employers also report greater productivity levels and the ability to recruit and retain talent is going to be impacted by how a business approaches this issue.

On the other hand, for some, working remotely leads to a lack of boundaries between work and home, isolation, a negative impact on mental health or a missing spark from working with and around colleagues in the same physical space. The impact on more junior staff’s development is also a concern. The issue of monitoring employees working from home is also a big topic in its own right.

Circumstances and preferences vary across the board and that is why planning what happens next is important in terms of patterns of work and how these are agreed and documented.

Acas research found nearly half of employers (49%) said they expect an increase in staff working from home or remotely all week in the future, with slightly more (55%) expecting an increase for at least part of the week.

However, a common concern regarding flexible working is that it may not be the right approach for all of the workforce, meaning that employers have to work collaboratively with their staff to devise a blended working approach, which balances both the benefits of being in the workplace and remote working. Also, once we move away from a model of most or all employees working at home to a true hybrid model and the variations within that, how that will work for a business, for specific teams and for individuals? It might be the case that trial periods are needed and that hybrid working policies evolve over time or there may be a need for different hybrid working models within the same business.

Consultation

The Acas guidance focuses on how employers are to consider, discuss and introduce hybrid working in the workplace.

A key takeaway from the guidance is that, in advance of implementing any new hybrid working models, employers should consult with their staff on any concerns or ideas that they may have. In some cases, this can be achieved by simply conducting a survey on staff that worked from home during the pandemic and asking them what they felt worked, and what was problematic. Those findings can then be measured against what the business sees as optimal. In other cases, early engagement and agreement with unions (and potentially collective consultation) will be necessary.

It is important to note that if employers do intend to introduce a new hybrid working model, there may be a necessity to make changes to employment contracts. Many of the current arrangements will have been seen as temporary and written contracts of employment will often be out of kilter with the current situation and what is envisaged going forward.  For instance, most employment contracts will state a specific place for the employee’s workplace and if this is not caveated with any further wording, the contract will need to be amended to align with the new hybrid working position.  Even if there is not a necessity or desire to alter contracts of employment, for any agreed changes between the employer and employee, it is always recommended to get this in writing to avoid any future disputes.

Hybrid working policy

The guidance also encourages employers to create a hybrid working policy where hybrid working is retained.  A hybrid working policy is a document which will outline how the hybrid working will work in practice, and also sets limits whilst still allowing flexibility. The guidance sets out various key details to include in the policy, such as outlining:

  • how someone can request hybrid working, and how the employer will respond;
  • how to introduce, set up and support an employee for hybrid working;
  • how staff and performance will be managed;
  • health, safety & wellbeing measures;
  • any training requirements specific to hybrid working;
  • limits on what roles are suitable for hybrid working; and
  • limits on where, when and how work will be done.

Together with creating a new hybrid working policy, it’s critical for employers to ensure that they are reviewing and adapting any related policies or procedures, and also updating any older policies to ensure that they are consistent with the newly introduced hybrid working model. In some cases a request for hybrid working will overlap with a flexible working request and possibly also be a request for reasonable adjustments as a disabled employee.

Risk of discrimination

If an employer is considering implementing or permanently retaining hybrid working, they need to be mindful that they are not placing an employee at a disadvantage because of a protected characteristic (age, disability, sex etc..) and thus inadvertently exposing themselves to discrimination claims.  For example, if an employer refuses a hybrid working request from an older employee because they do not think they will be able to cope with the IT requirements working remotely, but then accept a similar request from a younger employee who has the same IT set up, this would be ‘direct discrimination’ if it was because of age and the older employee would be able to raise a claim for this against the employer. Arrangements could also have a disparate impact on those with childcare responsibilities or caring responsibilities more generally.

In particular, employers should be mindful of disability discrimination claims. Employees with long Covid could also in many cases have a disability for the purposes of the Equality Act and care should be taken to make any reasonable adjustments and avoid indirect disability discrimination claims or section 15 “arising from” claims. Thought should be given to whether there would be a justification defence to an indirect or section 15 claim, in other words does the arrangement or policy or unfavourable treatment amount to a proportionate means of achieving a legitimate aim?

Employers should also be mindful of the need to conduct and keep up to date suitable risk assessments for both remote and in office working.

How can we help?

Look out for further content over the coming weeks as we explore the issues involved in the return to offices. If you have any questions about what hybrid working means for you or your organisation or more generally, please get in touch with our specialist Employment team.

This article was co-written by Sarah Milne, Trainee Solicitor.

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