Emma Burrows and Anna Scott consider the key points from recent Acas guidance on hybrid working and some tricky issues that can arise
Stop press: new consultation on making flexible working a day one right
The government issued a consultation on 23 September entitled Making flexible working the default. The consultation closes on 1 December. The introduction to the consultation notes that the government did consider removing employers’ ability to turn down flexible working requests and making flexible working a ‘right to have’. However, it concluded that, given the broad range of individual needs and wide variety of business models, this was not achievable in a practical or sensible way.
The government's proposals aim ‘to encourage a better discussion between employee and employer’ by ‘reshaping the existing regulatory framework so that it better supports the objective of making flexible working the default’.
The consultation seeks views on five areas:
- making the right to request flexible working a day one right;
- whether the eight business reasons for refusing a request all remain valid;
- whether to require employers to suggest alternatives if possible if they cannot accommodate an employee’s request;
- whether to enable employees to make more than one request per year and reduce the three-month deadline for employers to respond to a request; and
- how to encourage employees to request a temporary flexible working arrangement.
The consultation emphasises the government's aim of ensuring that the flexible working legislation genuinely supports an informed discussion between the employer and the employee. It notes that if an employer feels it is not possible to grant an employee's request, there might be other possible options and working together to negotiate a compromise ‘can help promote stronger working relationships’. The government wants to look at how practical it is to ask employers to set out, when rejecting a request, what alternatives they have considered (such as temporary changes, alternative part-time working patterns or making a change on some working days only rather than on all of them).
Support for employers
As an additional measure, the government will invite the Flexible Working Taskforce (a partnership across business groups, trade unions, charities and government departments) to consider how employers, now moving on from their immediate response to the pandemic, can be supported to offer flexible working options.
As noted in the consultation document, flexible working can be beneficial for many people, including those with caring responsibilities, new parents and disabled people. Although greater flexibility is generally good for equality and diversity, opening up the world of work to those who may have found it less accessible, it remains to be seen what the impact of the new proposals will be on employers. As a result of experiences during Covid-19, many organisations are now more open to accommodating flexible working. However, having to consider alternatives to a requested flexible working pattern, and documenting these, would be an additional administrative burden. Many employers may be reluctant to embrace such a change.
The consultation document is available at www.gov.uk/government/consultations/making-flexible-working-the-default
The Covid-19 pandemic has acted as a catalyst for change. Hybrid working is now here to stay and employers will have to take a flexible approach.
Acas has recently published guidance which gives advice to employers on how to consider, discuss and introduce hybrid working. The guidance notes that hybrid working can bring certain positives with it, namely increasing productivity and job satisfaction, attracting and retaining a more diverse workforce and improving trust and working relationships. It can, however, also raise some tricky issues. In this article, we examine the key points from the Acas guidance and look at some of the questions posed by the upsurge in home working, including how to respond to requests to work remotely from abroad.
Acas recommends that employers think about which roles might be suitable for hybrid working. Where the work could be done (in the workplace or remotely), when it could be done and how it could be done will all have to be considered.
Does the work need to be done at a specific time? Will there be core times that employees need to work together? Does a client or customer expect work to be done at specific times? Another consideration is how often work teams should try to meet in person.
It is impossible to monitor whether employees working from home are taking breaks so it is important to set out the limits of working time. The employer should establish whether those working remotely will observe strict office hours or it should specify ‘core hours’ when it expects staff to be available for work. It should remind employees that they are responsible for taking breaks and regulating their hours, as a failure to do so could breach the provisions in the Working Time Regulations 1998.
When deciding how the work could be done, Acas suggests the employer should consider data privacy and cyber security. Employees may need specific training on both their own and the employer’s obligations in relation to data protection and confidentiality. Employers should also carry out an impact assessment of the data protection implications of employees working remotely.
The Acas guidance also suggests that employers should think about who will provide equipment and how to do workstation assessments. There is no legal obligation on an employer to provide the equipment necessary for hybrid working. However, if it is needed for health and safety reasons or as a reasonable adjustment for a disabled employee, then the employer may have to pay for it.
Who will insure any equipment? It may be covered by the employer's insurance or the employee may have to insure it, in which case it will be necessary to decide whether the employer will make a contribution to this cost.
What are employees’ needs when working remotely? Examples of things that Acas says to consider include any reasonable adjustments that are required, the employee's home working environment, any caring responsibilities and other flexible working needs.
Any adjustments made for disabled employees at work to enable them to carry out their job effectively must also be made so far as possible in their home environment. Any technology should be accessible to the visually impaired and those with hearing impairments must be able to access any meetings. If certain adjustments cannot be made, this may affect an individual's performance, so the employer should make allowances for this.
Some employees will have particular conditions in mortgage and tenancy agreements prohibiting them from using their accommodation for business purposes without prior permission. Employees should be told to check the terms of any agreement and, if necessary, inform their landlord or mortgage provider.
Consulting about change
If the employer decides to introduce hybrid working or make it a long-term arrangement for employees who are already working from home, it should consult staff and prepare them for the changes. It will need to explain what is changing and invite employees to suggest ideas and talk about their concerns. Acas suggests surveying those staff who worked from home during the pandemic on what worked and what did not.
The employer will have to consult if the changes affect health and safety, there is a collective agreement in place or the plan is to change the contracts of 20 or more employees.
New ways of working may require contracts to be updated. An employee may move to working from home permanently, or there may be a move away from fixed nine-to-five hours (or core hours) towards working flexible hours, as long as the job gets done.
The employer should also consider setting out any formal reporting procedures and obtain employees’ agreement to comply with all health and safety, data protection and confidential information policies.
The Acas guidance contains a section on treating staff fairly in a hybrid working scenario. Employers should take care not to exclude or discriminate against anyone. Irrespective of where an employee is working, they should receive the same access to work, support and opportunities for training, development and promotion.
It helps if the employer clearly sets out its expectations for remote supervision. An employee should have regular catch-ups with their manager to review not only the work they are carrying out but also to discuss any other issues. It is important to keep communication channels open.
Employers must be careful not to implement a policy or practice which has a disproportionate impact on people with a protected characteristic unless they can objectively justify doing so. An example given by Acas is deciding not to allow hybrid working for anyone in a particular role; this will disadvantage disabled employees who may find it difficult to travel to the workplace every day.
The Acas guidance points out that an employer will have responsibility for its staff wherever they are working and will need to consider health, safety and wellbeing, performance management and training and development.
Employers have to prepare and revise risk assessments and provide safe systems of work and a safe working environment in accordance with s2 of the Health and Safety at Work etc Act 1974. An employee also has a duty to take reasonable care of their own health and safety.
There is no prohibition on an employee doing their own risk assessment. The employer can ask an employee who is working from home to complete a risk assessment and provide photos. If the employer believes there is an issue, it can ask for verbal or written explanations. The health and safety manager can then review the information, pick up any issues and put measures in place where necessary.
Remote working can be an isolating experience so employers will have to look after the welfare and mental health of their staff. It is crucial for employers to have a culture in which employees can be honest about how they are feeling. Any resources and support on offer should be clearly signposted so that employees know where to access them. Managers should receive training so they recognise signs of stress and anxiety and know how to deal with them. There are various useful pieces of guidance for employers to refer to produced by Acas, the Health and Safety Executive (HSE) and Mind.
How do you manage the performance of employees who are working remotely? The Acas guidance states that performance management should be the subject of consultation with employees and their representatives. Things to discuss will include whether there is a need to monitor employees working from home; what could be monitored and how; data protection law; and how to be consistent with monitoring someone in the workplace and remotely.
Finally, the Acas guidance also recommends thinking about training for staff and managers on hybrid working.
When will employers have to consider a statutory request to work flexibly?
An employee may make a formal flexible working request if they want to:
- split their time between home and office and there is no hybrid working policy in place;
- work more frequently from home than the policy permits (or solely from home); or
- apply for another form of flexible working, such as reduced hours.
As noted in our 'Stop press' box above, the right to request flexible working may be changing to a day one right under new proposals which are currently out for consultation. However, the current position is that to be eligible to make a statutory request for flexible working, an employee will have to have 26 weeks' continuous employment. The employer can refuse it on one of the statutory grounds (the burden of additional costs, detrimental effect on ability to meet customer demand, inability to reorganise work among existing staff, inability to recruit additional staff, detrimental impact on quality, detrimental impact on performance, insufficiency of work during the periods the employee proposes to work or planned structural changes).
There is an onus on employers to deal with requests reasonably and to treat all staff equally. It is also important to bear in mind that it could be difficult to refuse a request for hybrid or remote working when an employee has worked effectively from home during the pandemic. If the employer feels that it is not possible to fulfil the request, the Acas guidance on flexible working suggests considering other options. For example, the employer might make the change for a limited period or make the change on some working days only rather than all of them.
Will employees who have been working from home gain a permanent right to do so?
Many employees have been working from home since the beginning of the pandemic and are only now facing calls to come back to the office. Will they be able to argue that they now have a permanent right to work from home because the practice has become contractual through custom and practice?
It is unlikely that such an argument would succeed. Government guidance has consistently instructed people to work from home if they can, and it is only since 19 July that they have been allowed to return to the office, with the government recommending ‘a gradual return over the summer’. In the circumstances, there has been no scope to do anything other than work from home, and it will generally have been an arrangement which was understood to be temporary in nature.
What are the implications if an employee asks to work from home from abroad?
This will depend on the particular circumstances, including the contractual position and the nature of the employer's business. Employers will need to consider each request on its facts, taking account of the reason for the request and any adverse implications of a prolonged overseas stay.
Unless the anticipated duration of the stay is so long that it may affect tax residency, the UK employer should continue to deduct income tax under the PAYE system in accordance with the employee's PAYE code. It should also continue to deduct employee National Insurance contributions and pay employer contributions.
It will be necessary to consider whether the employee's stay in the host country creates risks of income tax or social security liability in that country as well. The host country will have primary taxing rights over the income that the employee earns while in that country. If there is a double tax treaty between the UK and the host country, the employee may be exempt from income tax there if certain conditions are satisfied, including that the employee is not a tax resident in the host country.
Employees of a UK employer may still be covered by British employment rights even if they are working in a different country. If they are working from home abroad then their employment will arguably still have a greater connection with Great Britain and British employment law than with the jurisdiction in which they are temporarily working. However, it is worth noting that an employee living and working abroad may also acquire local employment law rights in that country.
Employers will have to check their insurance policies cover them if an employee has an accident or falls ill while abroad. The local law of the country the employee is working in may require particular insurance to be taken out in respect of their employment.
The employer should consider what happens if it wants to recall the employee to the workplace for any reason. Time differences between countries may also be problematic if the employee has a client-facing role or needs to join meetings with colleagues in the UK. The employer could include something in any temporary overseas working arrangement to make it clear that the employee's working hours will be in accordance with GMT (or at least overlap with it significantly).
When an employee works abroad, their personal data will still be covered by the UK data protection legislation and so this will not generally be an issue for the employer. However, the employer should consider whether the employee has access to any personal data about others (such as customers, colleagues and suppliers). If the employee will be based outside the EEA, then the employer should consider whether this triggers any requirements in the GDPR on overseas data transfer.
Health and safety
If an employee is working from home abroad then their work environment will have to be compliant with any local health and safety requirements.
Minimising risks when employees make a flexible working request to work from home abroad
Employers should remain open-minded when determining requests to work remotely from overseas. They must deal with all requests consistently and fairly to avoid any suggestion of discrimination. These are some pointers for considering such requests:
- only accept requests if the employee's role can be performed effectively remotely and can be done lawfully from the country in question;
- bear in mind that the shorter the period the employee is working abroad, the smaller the risks are likely to be;
- take local advice on any tax, social security, immigration and employment obligations you may have in the host country;
- consider warning the employee that their ability to participate in company benefits such as a pension, private healthcare, income protection and life assurance may be adversely affected by a move abroad; and
- check that any data processing can be carried out lawfully in line with your usual policies.
'Hybrid working', Acas
'Flexible working', Acas