Legalities of hybrid working

Paul Kelly, Head of Employment Law at Blacks Solicitors, discusses employment law as it currently relates to staff wellbeing and the evolving hybrid workplace.

Under the current legislation employees with 26 weeks service have the right to request (but not the right to be granted) flexible working arrangements. Employers can refuse a request to change contractual terms with reference to eight broad business reasons set out in the legislation. If an employee has made a request an employer should ask for it in writing, consider the request fairly, discuss it with the employee and look at other options if the request isn’t possible. A decision must be given to the employee within three months of receiving the request. A flexible working request can only be turned down if there’s a valid and factual business reason or if there will be a negative effect on the quality of work.

If an employer decides that monitoring is necessary they should undertake a data privacy impact assessment. This, essentially, is a balancing act to ensure that employees enjoy privacy at work while still protecting the business’s interests.

If a data privacy impact assessment is undertaken properly then employers do not generally need their employees’ express consent, although it is advised. Express consent will be needed if the employer is collecting sensitive data about the employee. It is also highly recommended that employers implement an electronic communications policy to clearly set out the standards they expect from employees.

Monitoring dos and don’ts This should include a full statement setting out why monitoring is to be undertaken and for what purposes, together with how the employer intends to monitor employees and to what extent. The employer should also clearly state who will have access to any of the data collected from the monitoring undertaken and how it will be processed.

Perhaps the most contentious issues we foresee for employers relate to the recall of staff into the workplace. Some employees have become used to working from home and, confident that they can do their job remotely, have no desire to return to the workplace. In this situation employers would be best advised to engage with the employee’s objections before simply demanding that they get back to work. If no accommodation can be achieved and there is nothing preventing the employee from returning to work, then disciplinary action for failure to follow a reasonable instruction may be an option.

Some employees, especially the clinically vulnerable, will still not feel safe returning to work. This situation must be handled with care because employees have a legal right not to be subjected to a detriment if they remove themselves from the workplace when they reasonably perceive serious danger associated with remaining there.

In such a circumstance the employer needs to satisfy itself that it has discharged its duty of care and that its premises are Covid-secure to allay the concerns of the employee in question. If this still does not satisfy the employee and they simply refuse to return, then termination of the contract of employment can be considered. However, this is not a step to be taken lightly as any dismissal related to an employee’s health and safety concerns will almost certainly invite a claim in the employment tribunal.


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