Home and hybrid working: current employment law essentials for people professionals

This article was co-authored with Dr Gill Maxwell of CIPD for publication on the CIPD website

What do HR practitioners need to know and do regarding contractual issues and health and safety law? 

The CIPD has supported the people profession and employers in their response to COVID-19 since March 2020 and continues to do so by providing a raft of up-to-date guides and resources. CIPD provision includes supporting returning furloughed workers and planning employees’ return to the workplace. Several of our guides focus on aspects of employment law, such as our guide on flexible working measures for returning to the workplace.

This article sets out the main aspects of contracts and health and safety law. It includes what these mean for HR practitioners as they continue to play a pivotal role at the forefront of organisations still navigating their way through the pandemic. Being proactive in the main legal and employer dimensions of home and hybrid working right now will help promote good work and pre-empt litigation. 

Home and hybrid working to continue for many employees

The sudden shift to home working for a large proportion of the workforce in the UK was a hallmark of the initial employer reaction to the prevalence of coronavirus. It is now anticipated that, for over a million people, home working is likely to stay to some extent, with the number of hybrid workers expected to increase correspondingly.

Hybrid workers are those who spend part of their time at their workplace and part of their time working from another location, such as their home. Our research on hybrid working indicates that the majority of employees want to keep working from home at least some of the time and will therefore benefit from CIPD tools, guides and a webinar on hybrid working. Our line manager guide on supporting hybrid working is especially helpful for HR practitioners and HR business partners in their collaboration with line managers responsible for hybrid working employees.

Employers using home or hybrid working arrangements need to act on a range of law-related aspects. These include: 

• reviewing existing HR policies, for example homeworking or flexible working policies, and introducing new ones, such as a hybrid/agile working policy
• organising how workers will be managed and supervised, while ensuring no differential treatment
• incorporating new contractual clauses into employment contracts
• checking whether any employer’s liability insurance policies need updating
• identifying how confidential company, employee and client information will be kept secure, and
• identifying any employee tax implications, such as expenses incurred in working at home or for computer equipment provided.

Contractual issues in home or hybrid working requests and practices

Contractual issues are at the centre of planning and operating home or hybrid working, starting with flexible work.

There is currently a statutory framework for employees to make formal requests for a flexible working arrangement. However, new research reveals that nearly half of employees do not have flexible working in their current role despite the shift to home working, which sparked the CIPD’s recently launched campaign on making flexible working requests a day-one right.

Although any alteration to a working arrangement specified in an employment contract will generally be a material change to terms and conditions of employment, home or hybrid working may be agreed on an informal basis without the need to formally alter an employment contract. This may be as part of a flexible or agile working policy which allows an employee to choose whether, and when, to work from home and in the workplace, subject to business requirements. 

Employers should ensure that they adopt consistent HR policies and practices for all employees in flexible working. This might be by requiring employees to make a formal request to amend their contract, or by implementing a policy of discretionary hybrid working for all or part of the workforce, for example. 

An employer that opts for home or hybrid working to operate on a non-contractual, discretionary basis should be aware that the working arrangement may, depending on its nature, become an implied term of the employment contract over time. If it becomes a common and accepted practice, employees can argue they have a ‘custom and practice’ contractual right, should their employer decide to roll back on home or hybrid working. 

Further contractual issues to consider

1. Employers who change the written statement of particulars of employment are required to give workers a written statement containing the particulars of that change. For example, if there is a contractual change to working location, this should be provided to employees in writing.
   
   
2. A change to working location may be imposed on employees when an employer decides to give up or reduce their organisational workspace. If this occurs, some employees may not agree with such an attempt to unilaterally vary their employment contract. This would potentially be a breach of contract and could also lead to a claim of constructive dismissal or unfair dismissal by the employee. HR practitioners are therefore advised to communicate and consult with employees on a proposed change to working location to get their agreement.
    
3. Employers seeking to rely on a flexibility clause, such as a mobility clause, to make any such alteration should be aware that case law has interpreted these clauses narrowly. Flexibility clauses cannot be relied on unless the alteration is construed as reasonable or a minor administrative change which is not detrimental to the employee.
   
   
4. Where home or hybrid working becomes a more permanent arrangement, consideration may need to be given to amending other contractual terms. This may include hours of work, salary and benefits, any expenses which can be claimed, and how confidentiality and data protection will be maintained.
   
   
5. Employers should take care to ensure that homeworkers do not experience less favourable treatment compared with other employees. Consideration should also be given to the Equality Act 2010, and ensuring that any decisions about hybrid working are not discriminatory on the grounds of a particular protected characteristic.
   
   Where an employee has a disability, homeworking might be a reasonable adjustment but, in some circumstances, this could cause additional disadvantage. Therefore any impact on a given individual should be considered by HR practitioners. Inclusion and fairness are paramount.
   
   
6. An employer’s HR policies and procedures, including normal disciplinary and grievance procedures, apply to home and hybrid workers in the same way as to other employees. HR practitioners therefore need to ensure consistent application of all policies.

Health and safety law applicable to home workers

Employers must be mindful of their duty of care to home workers. Employers have a duty under the Health and Safety at Work Act 1974 to ensure the health, safety and welfare of employees as far as is reasonably practicable. If an employer employs more than five people, it has a statutory duty to have a written statement setting out its general health and safety policy. 

HR practitioners will often have had a responsibility in managing health and safety considerations during COVID-19. Health and safety duties apply equally to home workers as to other employees, a point which can be overlooked by organisations. Therefore risk assessments of employees’ home workstations are required.

A failure to comply with health and safety measures could be considered a breach of the mutual duty of trust and confidence under the employment contract, and reporting a health and safety breach may be a protected disclosure. HR practitioners should be aware that there may be an increase in claims on whistleblowing or constructive dismissal in relation to health and safety. Employers’ duties include a duty to consult with employees on health and safety matters, which includes measures in response to COVID-19. 

HR practitioners have a very important role in considering the main aspects of statutory employment law for home and hybrid workers. Good employers will be actioning these aspects now. Employers who aren’t are more likely to face cases brought against them at an employment tribunal. Time will tell.

This autumn, government figures will be published on the number and type of cases that were raised by employees in the year 01 April 2020-31 March 2021 - a main part of the pandemic period. However, it is in the figures for the year 01 April 2021-March 2022 that we are most likely to see the total number of cases related to the issues outlined in this article.

Ministry of Justice employment tribunal application figures for England, Scotland and Wales