Hybrid working legal and practical issues: Your common questions answered

Published: 16 June 2022 | by Darren Newman

While many employers have now implemented a hybrid working model, challenges remain to ensure that hybrid working arrangements run smoothly. HR & Compliance Centre (formerly XpertHR tools and resources) consultant editor Darren Newman answers some of the most common legal and practical questions that hybrid working organisations have been asking us.

1. Can an employer give an employee the option of becoming a permanent homeworker in return for agreeing to a pay cut?

The general principle in employment law is that the parties are free to agree whatever terms and conditions they like, provided that basic minimum standards — such as paying the national minimum wage and complying with working time legislation — are met. There is no general rule that pay must be a fair reflection of the work that an employee does, nor that the criteria on which pay is determined should be reasonable.

There are two legal bases for challenging an arrangement under which the employer makes any homeworking arrangement conditional on a reduction in pay.

Flexible working requests

The first basis for a challenge would be if the employee is exercising their right to request flexible working. That right is wide enough to cover a request to work at home, even if there is no change in the employee’s hours of work. If the employer offers to agree to the flexible working request only if the employee takes a pay cut, that would amount to a refusal of the employee’s application.

In those circumstances, the employer would not have to show that the insistence on a pay reduction is reasonable — but it would have to show that it is based on one of the valid reasons for refusal set out in the legislation. These are drafted very widely and cover issues such as the additional cost that the arrangement would impose on the business and the impact that granting the request would have on the quality or quantity of the work being done.

Some discussions in this area have highlighted the fact that employees are financially better off if they do not have to bear the costs of commuting or are able to live in a cheaper area that is further away from the employer’s premises.

Neither of these considerations would appear to fall within the permissible grounds for refusing a flexible working request. Any reduction in pay would genuinely have to reflect the reduced value that the employer will obtain from the employee’s work or the increased costs that the employer will incur as a result of the arrangement.

For example, if an employee who works exclusively from home is unable to undertake some specific duties that would have to be covered by employees on the premises, the employer may be able to argue that a reduction in pay is a fair way of meeting the extra costs involved in agreeing to the arrangement.

The right to request flexible working applies only in the case of existing employees with 26 weeks’ service who are seeking a change in their current terms and conditions of employment. The right does not prevent an employer from offering a trade-off between pay and the right to work at home to new recruits.

Indirect sex discrimination?

The second legal basis on which such an arrangement could be challenged is a claim for indirect sex discrimination.

If it could be shown that women are more likely than men to need to work from home to balance their work and family life, an insistence on agreeing to such an arrangement in return for a pay cut could be regarded as placing women at a substantial disadvantage when compared with men.

That policy would amount to indirect sex discrimination unless the employer can show that it is a “proportionate means of achieving a legitimate aim”. It is difficult to see how this policy can be justified unless the fact that the employee is working from home imposes some cost on the employer that would justify a commensurate reduction in pay.

The fact that the employee would make savings by working from home, meaning that they are financially better off, would not be a valid reason for reducing their pay.

2. Do hybrid working organisations have to pro rate time spent at the workplace for part-time workers?

Part-time workers are entitled not to be treated less favourably than full-time employees on the ground of their part-time status (although it is worth noting that there is nothing in law to prevent a part-time worker from being treated more favourably than a full-time employee).

The employer can defend a claim if it can show that the less favourable treatment is “justified on objective grounds”.

Ratio of days at home

This suggests that, if an employer allows a full-time employee working five days per week to work at home for two of those days, a part-time worker working three days per week should be allowed to work at home for 1.2 days.

In reality, an employer could easily justify not allowing parts of a day to be worked at home, which means that allowing the part-time worker to work one day at home and two days in the office would be roughly equivalent to the treatment of a full-time employee.

A part-time worker might suggest that they should be allowed an additional day at home every five weeks so that the pro rata principle is strictly maintained. However, disputes on that point are unlikely to get as far as litigation.

Indirect sex discrimination?

Employers should bear in mind that claims relating to part-time work are more often brought on the basis of indirect sex discrimination than as claims under part-time workers legislation.

It is well established that women are more likely than men to work part time. It is not quite so straightforward to show that this distinction still holds in relation to hybrid workers. However, if a particular disadvantage to women could be shown, the employer would have to demonstrate that any failure to provide a pro-rata homeworking arrangement is a proportionate means of achieving a legitimate aim. This is a higher bar to clear than justification on objective grounds (see above).

Employers should therefore allow hybrid working among part-time workers on proportionately the same basis as for full-time employees, unless there are compelling operational reasons why such an arrangement is not practical.

3. Is there merit in a reluctant returner’s argument that working at home for over two years has created an implied term of their contract entitling them to continue to do so?

The crucial question here is not the amount of time that the employee has been working at home but the reason for the arrangement and the basis on which it was agreed.

No intention to vary contract permanently

Most contracts of employment specify the place of work and make it clear that the employee can be directed by the employer to attend work during the agreed hours.

A tribunal will not readily find that a period of homeworking has by implication varied that express term. The question is whether the evidence shows that the parties intended that the original term of the contract would no longer apply.

If the homeworking arrangement was largely in response to government guidelines — or indeed regulations that would have made coming to work a criminal offence — it is highly unlikely that this will be held to show any intention to vary the contract on a permanent basis.

Intention to vary contract permanently

There may be situations in which the employer can be seen to have agreed a new arrangement that is prompted by lockdown guidance but independent of it. If the employer has now reconsidered the way in which employees should work and has decided that employees should continue to be allowed to work at home, whatever the status of the pandemic, evidence of that might imply some change in the contract.

For example, if the employer has relocated its premises and done so without the agreement or involvement of employees, this might indicate that both sides understood that employees would not be required to work at the new location. Similar arguments may apply to employers who have reduced their floorspace so that there is no longer room for employees to return to the office on the same basis as before.

The pandemic may therefore have prompted new arrangements that, properly judged, can be seen as implied variations to the contract of employment. However, allowing employees to remain at home in compliance with government guidance does not on its own amount to a variation of contract.

Even continuing the arrangement beyond the time when that guidance was withdrawn is unlikely in itself to be enough if it was clear that the employer still regarded the situation as a temporary one.

4. Are hybrid working organisations required to carry out a health and safety risk assessment for employees’ workstations at home?

Employers must ensure that the risk assessments they are required to carry out in relation to their employees includes those working at home, even if it is for only part of the week.

Proportionate approach

The Health and Safety Executive encourages a proportionate approach to homeworking and stresses that in most cases it is not necessary to carry out a home visit and physically inspect an employee’s workstation. Usually, it is sufficient to provide employees with guidance on how to set up a safe workstation at home.

When home visit may be appropriate

Where the work is particularly intense or the employee is likely to be required to remain at a specific workstation for an extended period of time, the employer might reasonably be expected to make a more detailed assessment of the environment in which the work is to be performed.

This may involve a home visit or a check to ensure that the equipment being used by the employee is appropriate.

5. Where hybrid working takes place, are organisations obliged to provide staff with home equipment such as an ergonomic chair, a desk and a monitor?

While an employer may look at the provision of equipment as part of a policy of encouraging or facilitating hybrid working, there is no law requiring employees to be supplied with particular equipment by the employer.

Safe system of work

An employer may feel that ensuring that the employee has the right equipment, and an appropriate workstation, is part of its duty to provide a safe system of work. Even in such cases, there is no specific requirement for the employer to provide that equipment.

If the employee is unable to work safely and appropriately at home, the duty to provide a safe system of work could be a consideration if the employee is requesting homeworking.

Enforced homeworking

Where the hybrid working arrangement is at the employer’s request or insistence, the argument is much stronger that the employer should provide appropriate equipment.

Generally, it is for the employer to provide the means by which an employee does their job and if the employee is not asking to work at home, it is difficult to see how an employer can require them to do so without providing them with the equipment that they need.

6. Can hybrid working organisations oblige new starters/probationers to come to the workplace more often at the start of their employment on the basis that they need intensive training that is better done in person?

Yes — the employer is free to specify the terms and conditions of employment. This approach should present no contractual difficulty, provided that the contract of employment makes it clear that the employer can direct the employee to work a greater proportion of the working week in the workplace during the early stages of employment or until the probationary period has passed.

Indirect sex discrimination?

In theory, the argument around indirect sex discrimination could be made if such an arrangement could be shown to adversely affect more women than men. However, any discriminatory impact may be objectively justified if the requirement is a proportionate means of achieving a legitimate aim.

Limited adverse effect

Proportionality in this context means balancing the adverse impact of a measure against the business needs of the employer. Since the requirement to come to work more frequently is temporary, the adverse impact is relatively limited.

Provided that the employer’s reasons for needing the employee to come to work are genuine, a tribunal is likely to be sympathetic to a temporary arrangement of this sort.

7. Can hybrid working organisations enforce a rule prohibiting hybrid workers from combining homeworking with childcare?

An employer is entitled to have a legitimate interest in the quality of employees’ work and the amount of time that they devote to the employer’s interests.

However, it is inevitable that employers are not in a position to control employees’ home environments to the same extent as when they are attending the workplace. Attempts to exert that degree of control are likely to be resented and may prove counterproductive.

Potential for discrimination?

A concern about childcare is particularly sensitive as it is more likely to impact women. A rule preventing a hybrid worker from performing childcare tasks during a working-from-home day has the potential to be indirectly discriminatory.

A suspicion on the part of the employer that the employee’s attention is not properly focused on work may also be directly discriminatory if it can be shown to be based on a gendered assumption about women working from home.

Nature of the role

Of course, it all depends on the nature of the work. For many employees, working from home allows for more flexibility across the working day. Rather than being bound by strict working hours, the employee can build the work around other activities, including childcare. If the quality of work does not suffer, it is difficult to see what business this is of the employer.

However, some jobs do not have that flexibility and the full attention of the employee is required within defined working hours, even if that work is being done from home. In those circumstances, the employer can legitimately object to anything that interferes with the employee’s ability to do the work at the time required.

Employers should be careful not to concern themselves with the details and logistics of employees’ childcare arrangements — those are a matter for the employee. But it is entitled to ensure that the employee’s working arrangements allow for the work to be done to the required standard.