Homeworking and Hybrid Working: What’s right for your business?

A number of businesses and especially larger central London firms have begun ending their working from home arrangements, or have introduced new hybrid working policies, restricting working from home to just one or two days per week. Recent research by the Centre for Cities highlighted that on the global stage, the return to the office in London has been much slower than in other major global cities. 

 Whilst the downside for employees might be a return to an off-putting, often crowded and expensive commute, a lack of desk space when they get to the office and the distraction of working in a busy office versus the ability to work undisturbed at home, it looks as if the home-working trend which began five years ago during the pandemic is finally coming to an end for many. 

Many employers argue that a return to work is beneficial as staff will perform better and there is more engagement in the office setting. Younger team members will also benefit as many have been struggling with working from home as they don’t have the same access to more experienced colleagues. 

Many firms have chosen now to ask teams to return to the office as they are less worried than they were a couple of years ago that it will make them less attractive from a recruitment and retention perspective. 

 One of the main issues for many employers has been that they have found it difficult to monitor productivity of employees and working from home policies were often poorly thought out and implemented. 

So, what challenges will employers who are keen to see a return to the office going to face? 

Where the working from home arrangement has been satisfactory to date then requiring employees to return to the workplace permanently could amount to a breach of the implied term of mutual trust and confidence. Any decision to require them to return to the office permanently should therefore be based on a sound business case along with an open and transparent consultation process. Employees should be provided with reasonable notice of the change taking place rather than being expected to alter their working arrangements with immediate effect. 

Another risk for employers is that the working from home arrangement may have become an implied term of their employment contract through custom and practice. The risk is higher where employers have not drafted relevant policies or not expressed those policies to be non-contractual. 

Where an employer previously made clear that its policy was discretionary and may be revoked at any time, this will help to rebut any argument that the arrangements were ever intended to be permanent. However, for those recruited after the introduction of the practice it might be harder for the employer to argue that it wasn’t. Depending on the duration, arrangements which were expressed to be discretionary may still become implied terms where they subsist for long enough.

The same principles also apply to employers changing their hybrid working arrangements. Where they have in practice allowed employees to work from home more regularly than their policy permits, those employees may be able to argue that their current working pattern has become an implied term through custom or practice. 

Employers should ensure that they accurately monitor how regularly staff are working from home and actively enforce their policies where they are being overstretched.

Individual employees can make flexible working requests from day one of their employment and request permanent flexible working arrangements. Employers will need to consider whether homeworking or hybrid working arrangements may amount to a reasonable adjustment where the employee is disabled, otherwise they risk indirect discrimination if they are denied.

Ultimately whatever a business decides to do there is still a risk that there will be pushback from employees. As more and more employers however look to review and change hybrid and working from home then employers that do offer much greater flexibility may stand out and attract a higher calibre of employee and retain staff for longer.