16 Jul 2021

From Monday 19 July, the Government’s official instruction in England* to “work from home where you can” will no longer apply. Should this be the time to adopt hybrid working?

The Government’s instruction provides a green light for employers to start making permanent plans for a return to the workplace, but there is no immediate call to rush back. According to updated guidance, the Government continues to “expect and recommend a gradual return over the summer”.

Striking the workplace/home balance

This gives employers some breathing space to strike the right balance between their business requirements and the wishes of individual employees, in how work is organised and where it is done.

It also allows time for employees who are understandably nervous about commuting to ensure they are fully vaccinated, before getting back to “normal” working. The Government expects employers to “remain responsive to workers’ needs, particularly during this period when not every adult will have been offered two vaccine doses”.

Redefining ‘normal’

But what does getting back to normal actually mean in this context? Media reports of employers expecting a full-time return to the office stand out because they appear to be outliers. For most organisations, how they do business has changed irreversibly. Although they may not want to give up the workplace altogether, they recognise it may now serve a different function, as part of a hybrid working arrangement.

Employers propelled without warning or preparation into large-scale home-working arrangements have generally adapted well. Despite all the initial upheaval and logistical headaches, it is now well-established.  Although circumstances may gradually change, office-working is now as unfamiliar to many employees as working from home was two years ago.

Successful hybrid working will amalgamate the positive aspects of working remotely with the parts of our working lives that we’ve missed by not being in the same physical space as our colleagues. This creates a conundrum for employers, as the permutations of hybrid working will be unique to each organisation.

Opportunity, not obligation

However, it is a positive challenge and one which should be embraced. A recent Business In The Community report has described the current situation as “fake flex”, created through necessity rather than choice. Employers now have that choice, to redesign ways of working and take a rare opportunity to overhaul their operating models for the long-term benefit of their business, customers and workforce.

Here are five steps to help employers approach that redesign exercise with confidence.

STEP 1: Reflect

The prolonged lock-down period has been an enforced experiment into what the future world of work could look like. It has compelled employers into radical change that otherwise would never have happened so rapidly. It’s worth reflecting on the magnitude of keeping business going and how that achievement can be harnessed in the future. Some things to consider:

  • How can you retain what has worked well and resolve what has been challenging about home-working?
  • Have some teams or individuals performed better than others in that environment and, if so, why? Is it down to personal factors that can be accommodated in individualised working patterns, or are there wider lessons to be shared across teams?
  • How will you best use the workplace, assuming much of the current work can still be done from home? Will you need less space (whilst still allowing for appropriate COVID safety measures)? Should it be redesigned to encourage collaboration and team-based activity, with individual tasks performed remotely?

You can read more about Creating Better Workplaces: Six Positive Lessons from Lockdown, discussed as part of the Taylor Vinters People Summit Series.

STEP 2: Set core principles

Although it’s important to recognise that some flexibility for individuals may be appropriate, we recommend starting with what the business would want as the ideal default position. Consider carefully what type of arrangement is most likely to create the optimum balance of preserving culture, encouraging innovation and creativity, maximising productivity, satisfying customer demand and managing individual employee preference. For example:

  • Is there a business reason for having all employees in the office for a set number of days per week? If so, we advise having a clear rationale to explain this policy to employees, particularly if it’s likely to meet resistance.
  • Will the approach to hybrid working differ between teams/departments, depending on their function?
  • Will you adopt a centralised approach to how work is organised, or give managers discretion to set working patterns for their own teams (and bespoke arrangements for individuals)?
  • Should employees have autonomy to decide their own working arrangements, within certain parameters?

STEP 3: Consult

It is crucial to allow sufficient time to engage with employees about any permanent move to hybrid working. The latest Government guidance suggests that “whatever model you choose to follow for the longer term, you should discuss it with those who might be affected and also with employee representatives.

Any proposal to change the place of work (and any resulting impact on other contractual terms) will usually require employee consent. Failing that, a thorough consultation process is expected before any decision to introduce changes unilaterally by dismissing and offering re-engagement on new terms (typically a last resort). There may also be a separate requirement to consult with trade unions or other employee representative bodies.

Consultation is also good practice for employee relations, as workers are more likely to buy into new arrangements if they feel they have been heard.  Bringing senior managers on board first may allow a smoother roll-out of any changes to the wider workforce. Meaningful consultation can be a powerful retention tool, even if the arrangements are not ideal for everyone.

STEP 4: Don’t forget the detail

Another benefit of effective consultation is that people on the ground will often have valuable input on how the new arrangements might work in practice. Consider the following:

  • How will employees be managed or supervised on a day-to-day basis? Where some employees spend more time working from home than others, care must be taken to ensure they have the same level of supervision and support, and the opportunity to work on certain projects or develop their career.
  • How will meetings be managed when some attendees are in the office and others are joining remotely? It’s not always easy to ensure those dialling in have an equal opportunity to contribute. Should all important meetings be held entirely remotely or entirely in person?
  • Will there be sufficient space in the workplace for everyone to come in at once, if needed? If not, how will you manage who comes in when? Do you need to consider “hot desking” or some means of booking time in the office?
  • Are individual home-working arrangements adequate or should they be revisited, if employees will now be expected to work from home permanently for part of the week? For many, this was a makeshift arrangement that has lasted much longer than envisaged. Do they have the right equipment or working environment to perform at their best?

STEP 5: Implement and review

Whatever hybrid working arrangements are implemented, it’s important to ensure they are documented correctly. In particular:

  • If employees are no longer contractually required to be in the workplace full-time, employment contracts should be amended. You may also need to consider how their working time will be managed (for example, placing greater onus on employees to ensure they take proper rest breaks) and any circumstances in which expenses can be claimed for travel to the workplace.
  • Introduce a hybrid working policy, which sets out the core principles and practical details considered above. This should also contain guidance on matters such as health and safety; handling, storing and disposing of confidential information; data security; and when employees will be required to attend the workplace (even if it is on a designated home-working day).
  • Remember that employees who wish to withdraw from any default hybrid working position (or who are unhappy with how the arrangements will impact them personally) have the right to make a flexible working request, if they have at least 26 weeks’ service. This will require separate consideration.
  • Keep things under review and give yourself sufficient flexibility to change the arrangements if they are not working for the business or for any particular team or individual. A three-month trial period to allow time to “test and learn” is recommended and should be built into any policies or contracts.

* NOTE: Different rules and timetables apply in Wales, Scotland and Northern Ireland where, at the time of publication, the instruction to work from home if possible, remains in place.

The Taylor Vinters employment team has significant experience of supporting clients through the unprecedented challenges posed by the pandemic.  We have guided large multi-national corporates, emerging companies and non-profit organisations through the complexities of the furlough scheme, helped them manage the legal risks associated with operating workforces both on-site and remotely and, where necessary, advised on restructuring to secure their long-term future. 

If you would like help with redesigning and implementing your post-lockdown working models, please contact Dominic Holmes or your usual Taylor Vinters contact.