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Hybrid working became increasingly common throughout the successive coronavirus lockdowns, and the trend appears to be here to stay as we get used to the ‘new normal’, writes Rabika Basran from Gardner Leader.

The recent spotlight on this topic has even led to a new proposal to amend the current hybrid (better known as ‘flexible working’) legislation and these proposals are currently making their way through parliament.

Both employers and employees will, understandably, be monitoring the situation to see how they will be impacted.

Rabika Basran
Rabika Basran

What is hybrid working?

Hybrid working is a form of flexible working arrangement that allows employees to work both in the workplace and at a remote location, such as their home.

Why is hybrid working important?

The Chartered Institute of Personnel and Development (CIPD) recently found that 84 per cent of workers who were working from home during the pandemic plan to carry out a mix of home working and working from their employer’s premises in the future.

The benefits to workers are clear; three quarters of hybrid workers saw their work-life balance improve, particularly citing improved wellbeing and fewer distractions during the working day.

Hybrid working can also be beneficial for employers, as employees spending less time in the office has led to a lot of businesses ‘downsizing’ their office space and decreasing their overheads and carbon emissions.

However, some employers have valid concerns about the inability to monitor employees, lack of sufficient support or equipment and fears of isolation.

What is the current law?

The Employment Rights legislation requires employers to specify the location of the work in the employment contract.

Therefore, employees are bound by what is stipulated in their contracts of employment, which would usually be a specific location or place of work.

Sometimes this can be within a reasonable distance of a particular area, however if this is a specific premises/location included, the employee may wish to explore making a formal flexible working request to agree an alternative place to work from.

Currently, every employee with 26 weeks’ continuous employment has a statutory right to request flexible working.

Employers must treat all requests reasonably, and may only refuse if there is a ‘valid business reason’ for doing so.

This is quite wide, and may include situations where work can not adequately be re-distributed to other employees, or where implementing the request would be too costly.

The ACAS code suggests employers must notify employees of the decision (and any appeal) within three months from when the request was made.

What is the proposed legislation?

The new proposals seek to actively encourage flexible working as the default, unless employers have good reasons not to.

Employees will be entitled to request flexible working regardless of their length of service, known as a ‘day one right’.

This may be accompanied by measures which broaden the current scope of the right such requiring the employer to suggest alternatives or temporary flexible working arrangements to trial suggestions.

Employers will have to include job flexibility in job advertisements, and include flexible working arrangements as contractual rights.

How much is changing?

This may ultimately depend on whether the legislation implemented allows employers to retain the option of showing a ‘valid business reason’ to reject a request for flexible working.

If so, provided employers treat all requests reasonably, in practice not a lot may change.

There have been suggestions that employers will be required to bear equality in mind, but that has always been the case given employers should be aware of the potential risk for a decision to be discriminatory if it puts certain employees at a disadvantage.

If employers should outline flexibility options in all job advertisements, there is a potential that the workforce will see this as an opportunity to negotiate their preferred working arrangements.

The current trend among the workforce is steadily in favour of hybrid/flexible working arrangements, and the competitive job market should be able to meet this.

It also allows employers to tap into a wider pool of workers who may be have been unavailable due to family commitments, disability or distance.

If employers remain rigid in their approach, there is the potential that they could fail to attract new talent or even lose current good performers.

Right now, employers and employees should check current policies to ensure that they meet their current needs.

Employees wishing to formulise greater flexibility should discuss changes to their contracts with their managers in accordance with the procedures and employers should ensure that managers have had sufficient training to understand the company’s policy and its implementation.

If you would like to discuss any of these questions further, please contact our employment team on (01635) 508080 or employment@gardner-leader.co.uk

If you would like to find out more information on our employment services, please visit our website: www.gardner-leader.co.uk



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