By Laura Jackson, Associate, LexLeyton

When we think back to those chaotic days of late March 2020, with kitchen tables being commandeered as desks, laptops stacked on top of books and the onset of back pain for want of a proper chair, little did we know that home working was here to stay.

The COVID-19 pandemic has introduced remarkable shifts in peoples’ lives, including their working styles. It feels like every week the news reports another large corporate announcing its plans to introduce hybrid working. But it’s not for everyone. Most notably major investment banks have taken more of a hard-line position on insisting its employees get back to the office. Morgan Stanley has told its staff it will be ‘disappointed’ if they aren’t back in the office (and fully vaccinated) by September, while Goldman Sachs boss, David Soloman, called remote working an “aberration” that needed to be corrected “as soon as possible”. The CEO of JPMorgan Chase, Jamie Dimon, has said that remote working “doesn’t work for those that hustle”.

However for the majority of large companies, it looks like hybrid working is the future, with most favouring a 3 days in the office and 2 at home (or vice versa) approach. Your HR does not want to deal with a raft of flexible working requests, so perhaps it’s a good idea to set out your hybrid working stall in a well formulated, well communicated hybrid working policy, which lets employees know exactly what they can and can’t do. So what are the issues you need to consider when implementing such a policy? Set out below are some issues that you will need to work through and decide what works best for your business.

Who is hybrid working suited to? It may well be that, whilst the majority of the workforce can move to hybrid working, you might have some teams where it just isn’t feasible. For example, perhaps you have sales teams who need that spark of communal working and collaboration to make things work. Well it’s ok to have different rules for different teams depending on the needs of your business. All employees have the right to make a flexible working request, but the right is to have their request considered, it is not to have it accepted if that just doesn’t work for your business. There has been some speculation that the Government might introduce legislation where employees can demand home working, but such a move seems highly unlikely and will be met with strong opposition from business groups.

How will you check in on employees? When you can’t physically see your employees, how do you know that they are actually online and working? The answer to this is making your managers reconsider how they engage with their reports in this new way of working. Do they have daily team meetings to kick off the day or do they perhaps drop a call to each team member to check in and see what they are doing? However there also has to be an element of trust in this new hybrid world. Employees who feel trusted, supported and engaged are more likely to be more productive.

The flip side to checking up is checking in on employees. One by-product of home working is employees working longer hours because of the need to prove that they are working and also because they just can’t switch off when there is less of a clear divide between home and work. Managers should be alert to this too, and remind employees of the importance of taking breaks, getting out in the fresh air and switching off and closing down their laptop at the end of the working day.

What do we have to provide? This is a question I have been asked a lot lately – do we have to pay for desks and chairs for everyone?  The answer is no, you don’t have to provide home office equipment for home working employees. The caveat to that is if you have an employee who is disabled and the provision of certain equipment might amount to a reasonable adjustment. I also wonder if there is about to be an increase in bad backs for those home workers who either can’t or don’t want to invest in proper home working equipment, so perhaps providing some basic equipment might be short gain pain for long term gain. I’d also say it’s a good idea that you continue to provide laptops and mobile phones so that you know your employees have good, reliable equipment. It also makes it easier to remotely wipe these devices if they get stolen or misplaced. And when you do come to part ways, all the company information is stored on these devices that are then handed back without any complications of extracting personal information. In a similar vein, there is no legal obligation to make contributions to utilities for home workers, this is entirely at your discretion.

Do we have to pay mileage to come into the office now?  Again a question that keeps cropping up is whether or not employers now have to pay travel or accommodation costs for employees who have moved to home or hybrid working. Again, the answer is that there is no legal obligation to do this. It is however a good idea to make absolutely clear from the outset who is responsible for what costs so that there is no dispute later down the line.

Can we rescind the hybrid working arrangement?  Yes it is possible to revert back to full time office working, but again you need to make this really clear at the outset of the arrangement that you are reserving the right to do this and in what circumstances. Don’t forget, if someone is doing a hybrid working arrangement having made a formal flexible working request then this might have led to a permanent change to their terms and conditions, so it might be a good idea to seek some further advice before taking any action in those circumstances.

Do we still have to pay people the same money even though they now aren’t commuting every day? A controversial one for sure. Google has recently announced that employees choosing to work remotely will have their pay varied depending on which city they live in, since they say that salary is based on costs of living in places and tuned to local job markets. It has introduced a Work Location Tool for employees to input their details and see how different locations might affect pay. The first thing to do if you are weighing this one up is to look in the employment contract, are there any allowances based on location like London weighting for example? If not, this may make it more difficult to justify a downward pay review. Where an employee approaches you asking, for example, to move to permanent home working, you might chose to make salary one of the bargaining points. However, in the absence of an negotiating opportunity like this, an employee backlash to a pay decrease would seem inevitable, and so taking advice about how to pitch this is recommended.

Are there any GDPR considerations? Data protection is really important, particularly if your employees might be processing personal data in their roles. A reliable and secure internet connection (so not a public one at the local coffee shop) is non-negotiable, as too is making sure that all the usual data protection precautions, like password protection or locking physical documents away, apply even outside of the workplace.

Any other tips? A good tip I read recently was to treat everyone like a remote worker, even if they are in the office. This means that when you have a meeting with some people dialling in remotely, get all the participants to join on their own laptops. This avoids the awkwardness of having some people in the room and some on the computer, with the practical difficulties of seeing and hearing everyone who isn’t directly in front of the computer camera.

As everyone has had to demonstrate over the last year or so, sometimes we have to roll with the punches. You might put something in place and a few months in, realise it just isn’t working. The important thing here is to communicate with employees. Tell them at the outset that this is new for everyone and some things are going to have to be on a trial basis, and then keep them updated. The outside world changes rapidly as rules change, vaccines are rolled out and new variants unfortunately emerge. As a business you have to have the ability to respond and adapt to these changes.

If you need any assistance in talking through the right options for your business, or drafting your Hybrid Working policy, please contact us to see how we can help.