Hybrid working: The way ahead
Justine Riccomini and Dawn Dickson set out what needs to be considered when looking to roll out a workplace hybrid working regime.
Background
According to data from the Office of National Statistics, prior to COVID-19 only around 5% of the workforce worked mainly from home. Research recently undertaken, including a YouGov survey and CIPD research, indicates that a majority of workers now wish to spend at least part of the week working from home, after having experienced it during the pandemic. This trend can be used positively by employers to reconfigure the workplace and recruit talent from much further afield. The introduction of hybrid working practices is nothing new, but employers could benefit from the arrangement if they consider the opportunities and potential pitfalls in the round and adopt a holistic approach.
ICAS Members can take the opportunity to discuss these arrangements with clients to ensure they are aware of what may be possible and where to obtain expert advice. Due to the mixture of workforce planning, payroll and taxes aspects, remuneration planning, logistics, finance and production all come into it – and due care and attention should be paid to each area – taking advice from the appropriate experts such as employment law and HR management where these are not available in-house.
Hybrid working – the way forward
The available research mentioned above tells us that most employees would prefer a hybrid working arrangement, where they work part of the week in the office and part from home. Hence the increased proliferation of the term “Hybrid working” which is not a new term, but it has never been taken so seriously as it is right now.
After having successfully and productively worked at home for the best part of 18 months, many employees previously based in offices and call centres have a compelling case in asking for more flexible working arrangements.
As such, many employers are now considering how they can accommodate this to maintain goodwill, engagement and productivity and retain staff without losing knowledge and maintain continuity of service. The shift to hybrid working is possible, but it will entail a change of culture, a less hierarchical outlook, and refocused workplace protocols including homeworking, data protection, IT and performance management.
Going hybrid
Hybrid working provides opportunities for employers to reduce accommodation and business travel-related overheads and at the same time, enhances employee wellbeing and engagement, to provide a better work-life balance and likely fewer sick days. Employees can also benefit from a significant reduction in commuting costs, and with fewer people travelling twice a day and fewer business trips means that there are also environmental benefits, which businesses can count into their carbon neutral calculations.
What to do?
It is likely that organisations will need to develop a process map of short, medium and long-term strategic decisions, starting with bringing people back into the office safely and communicating reassuring messages to employees about this – not necessarily expecting the same from everyone depending on people’s own individual health & wellbeing needs. The CIPD has produced a helpful guide on this. It may be the case that as hybrid working arrangements evolve in each workplace, the policies and protocols in each working environment will also need to develop gradually too.
Myriad employers: Myriad arrangements
No two organisations are the same, and therefore there is no standard approach to implementing hybrid working. However, it does make sense for employers to cover off the legal implications adequately, as well as configuring a strategic plan and protocols which feed into that. Training managers, managing performance and ensuring that data integrity is maintained are also key to success.
Communication
Communications are key to successfully bringing people back to work, and most employers should consider consulting their employees about their thoughts and preferences in advance. If a Trade Union is recognised by the employer, they should be included in this process also. It goes without saying that workplaces should always follow UK government guidance and legislative requirements relating to health and safety.
Protocols
If employers already have a flexible working policy in place, they can consider adapting this to extend it to hybrid working for all those employees who it considers are eligible for it. Otherwise, a new policy will be needed.
Consideration could be given to some or all of the following aspects:
- Which role types/teams are eligible for hybrid working?
- Unless it is being rolled out to all workers automatically, instructions on how to request hybrid working and the considerations that will apply.
- Roles and responsibilities for hybrid workers and people managers.
- How hybrid working dovetails with general flexible working arrangements.
Legal implications of hybrid working
Where an employee formally requests and is granted hybrid working arrangements, this will amount to a change to the terms and conditions of their employment. However, note that Hybrid working (and indeed other forms of flexible working) can also be undertaken on an informal or temporary basis without a contractual change taking place. It is important that everyone involved understands the difference.
To date many employees working arrangements have changed due to the obligations on employers during a global pandemic. This would not lead to any permanent change to employees contractual terms. In agreeing hybrid working arrangements going forward employers will need to be clear on whether any agreed changes are on a temporary trial basis or are intended to be a permanent contractual change.
Employment contracts should also state a contractual location. This does not necessarily change as a result of hybrid working, but employees who work permanently from home normally have their home address as their workplace. This is also important for tax purposes (see below).
Organisations should take legal advice where appropriate on their particular legal implications of hybrid working.
Tax implications of hybrid working – use of home as office, travel costs, benefits in kind
Employees should be advised to discuss any implications of homeworking with their landlord/ mortgage provider/ house insurer/local authority, especially if a room in the home is specifically set aside for work purposes and is not used for any other purpose.
There may also be tax implications for employer and employee if an employee wishes to work some of their remote time outside of the UK.
Depending on whether the employee is contractually based at home for all or part of the time, or there is a pattern to their hybrid working arrangements, the travel costs incurred to go to the office or on business trips may still be treated as taxable or as ordinary commuting costs – HMRC is warning us that the usual arrangements apply and nothing has changed in that respect – although policy discussions are taking place on this.
The employer is still able to provide equipment and technology for the employee to use at home to tie in with workplace health and safety requirements – and this equipment/furniture etc. remains an asset of the employer’s. If it is transferred to the employee, the usual transfer of assets rules apply.
Technology and equipment
In addition to technology, considering what other equipment will support effective and healthy remote working, including the provision of office furniture or mobile devices. Data integrity is also vital and due consideration must be given to ensuring a seamless operation for hybrid working practices which does not compromise data integrity and which is GDPR compliant.
Performance management
Managers will need to adjust their management of individuals from observation of time spent in the office and person to person integration/behaviours to assessment of productivity, outcomes, value and levels of contribution if they do not already measure performance in this way. This will tend to lead to a more trusting professional relationship between workers and line managers.
Dawn Dickson is an employment law partner at Eversheds Sutherland in Edinburgh and can be contacted on DawnDickson@eversheds-sutherland.com.
