Is hybrid working here to stay?

Three years after the coronavirus restrictions ended in the UK, we take stock of the future of hybrid working.

Background

The final lifting of the COVID working from home guidance in late January 2022 made it possible for employers to make longer-term plans for bringing staff back to the office.

Since then, many employers have developed hybrid working policies, seeking to ensure that office workers can enjoy the flexibility of working from home for some of the time, without losing the benefits of interacting with their colleagues in the workplace. 

Current evidence suggests that nearly 30% of the workforce work from home for part of the working week, roughly double the level at the time the coronavirus restrictions ended.

Hybrid working is often portrayed as a “win-win” scenario, with both employers and their staff benefiting equally. However, in recent weeks there has been something of a backlash, with some prominent employers deciding to require the majority of their staff to return to the office full time. Most recently some office workers in the Metropolitan Police have taken industrial action in a dispute over changes to its hybrid working policy, which has reduced the amount of time they are allowed to work from home. 

The legal framework

Some employees may have a contractual right to work remotely for at least some of the time, but this is relatively unusual. Employment contracts typically stipulate an employer’s address as the place of work, meaning that hybrid working is normally offered on a discretionary basis. 

It follows that for most office staff, the right to request flexible working arrangements will be their only legal leverage if they wish to work from home for at least some of the time. As frequently stated, this is a right to request, not a right to have. However, it allows the employee to invoke a formal process and to ensure that their employer can’t refuse a request without pointing to at least one of eight specified business reasons for doing so. 

On 6 April 2024 the right to request became a day one right, and the number of requests that could be made each year increased from one to two. A requirement for the employer to consult with the employee before refusing a request was also introduced.

The Employment Rights Bill 2024 includes measures to make the right more employee-friendly, by introducing a requirement that it must be reasonable for the employer to refuse a request for one of the specified reasons.

For some employees the right to request flexible working arrangements can be bolstered by invoking anti-discrimination legislation. This can be deployed when a disabled employee asks for hybrid or home working as a reasonable adjustment. It can also be used by women (and in some cases men) where the ability to work from home for at least some of the time helps them fulfil their responsibilities as carers. In both cases it is still possible to say no for business reasons, but objective justification will be required, making it more difficult to lawfully refuse a request.

The relevance of the COVID experience

During the COVID pandemic many employees had the opportunity to demonstrate that they could do their job equally well, and arguably better, at home. This has strengthened their negotiating position when requesting flexible working arrangements. But an employment tribunal decision involving the FCA has demonstrated that an employer is still able to refuse a request if it has cogent reasons for requiring staff to attend the office for a minimum number of days during the working week.

In that case Ms Wilson, one of the FCA’s senior managers, had worked exclusively from home during the pandemic. Following the lifting of restrictions, the FCA reviewed its working practices and established a policy that staff in her grade should work 40% of their contracted hours in a physical office. She responded by making a flexible working request, asking to continue working from home 100% of the time.

The FCA refused her request. Although she had performed well during her period of remote working, it believed that her performance would suffer in the long-term without face-to-face interaction with her colleagues, particularly as she was a member of the senior management team.

In a decision published just over a year ago, the employment judge rejected Ms Wilson’s claim that her employers were in breach of the flexible working legislation. She concluded that there was enough evidence to support a decision that working partly in the office would have a positive effect on the quality and performance of her job, notwithstanding the high standard of her work when working remotely.

The employment judge made it clear that it didn’t necessarily follow that an employer could or should resist similar flexible working requests in the future:

“There is a debate which many companies are now engaged in and which the solutions arrived at will no doubt differ considerably from employer to employer, there will not be one solution which will work for all companies or even for all roles within a company.”

Flexibility for front line workers too?

The latest ONS statistics show that more than 40% of the workforce in Great Britain continues to travel to work every day. The proportion of these workers is much higher in some sectors – for example health, social care and retail – than in others. As the prevalence of hybrid working among office workers has continued to grow, concerns have been building about the emergence of a “two-tier” workforce, with front-line roles becoming less attractive because of their relative lack of flexibility. 

A recent study by social consultancy Timewise has illustrated that with determination and ingenuity positive changes can be made to front-line roles to build in greater flexibility and autonomy. Examples include giving workers a greater voice in scheduling work and “cross-skilling” to build capacity to accommodate more flexibility in working patterns. 

Getting a hybrid working policy right

Most employers would agree that even where a degree of home working is compatible with the demands of the job, getting a hybrid working policy right is not easy. There are likely to be differing views about where to strike the right balance between home and office time, and there are also issues of fairness to consider across the whole workforce.

It is likely that hybrid working policies will continue to evolve as experience of this relatively new way of working grows. Policies need to be sufficiently granular to take into account different job types, without becoming excessively complex. It will also be necessary to decide how and when to allow exceptions. These will include making adjustments for a disabled employee or withdrawing the benefits of flexible working from a particular employee for disciplinary or performance-related reasons. Any such decisions will need to be backed by a fair and transparent process.

We expect to see a greater variety of hybrid working policies in the future, as employers explore the balance between home and office working which suits their organisation. For some, working from home may emerge as an occasional privilege rather than a regular practice, while others will wish to offer a greater degree of flexibility. However, a complete return to the relatively rigid pre-pandemic practices seems unlikely.

Further reading

ACAS and the CIPD have both produced helpful guides on hybrid working. In terms of offering more flexibility to front line workers, this recent report from consultancy Timewise has some useful case studies.

You can read further commentary from Mills & Reeve on the future of flexible working here and a more detailed exploration of the FCA ruling here.

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