Hybrid working is a phrase used to describe an arrangement whereby an employee works part of the time at the office, and part of the time from home or another remote location. Given the evolution of COVID-19 variants, employers have a legal duty to consider the health and safety of their staff. For employees who have concerns about exposure to virus variants on public transport or in open plan office spaces, hybrid working provides a possible solution and employers should consider all requests for hybrid working with a fair and consistent approach.
As hybrid working is set to become more popular, this may lead to changes to company policies and employers will need to consider how this style of working may affect contracts of employment. Contracts can be amended by drafting a new contract with the new additions or adding a letter of variation as an addendum to the original contract.
It may be necessary to change contracts of employment in the following ways:
Clarify the place of work for hybrid workers
Contracts usually have a clause specifying the place of work and the employer’s address. The contract may state that the employer has the right to move the employee elsewhere on a temporary or permanent basis. However, amendments will need to be agreed with employees if current employment contracts do not apply to hybrid working. It may also be helpful to clarify how often and for what purpose an employee may be required to be at the office. As an example, office attendance could be stated as a requirement for training or staff meetings and other work-related events.
Establish working hours for hybrid workers
Contracts of employment must set out normal working hours and the days of the week that are to be worked. They must also include if the hours or days are variable and how the variation will be determined if this is the case.
Furthermore, given how working time can so easily blur into an employee’s personal time with those at home working longer hours, a further amendment to a contract is that the employee is responsible for ensuring that adequate breaks are taken.
Define the rights of the employer to enter the property of a hybrid worker
Employment contracts should also include the employer’s right to enter the property of an employee to undertake risk assessments, maintain or repair any work equipment and also ensure that confidentiality of data is being dealt with appropriately.
Clarify procedures for maintaining confidentiality while working remotely
Clear guidance should also be given to ensure that the storage of company information remains secure. There should be a provision in the contract for the return of confidential information on termination of employment.
Ensure that intellectual property rights are protected when employees work remotely
Intellectual property rights should be covered in any contract of employment and may need to be amended to include hybrid working. “New creations and/or inventions” may occur when employees are working from home and employment contracts would need to include the necessary provisions for this.
Implement online monitoring systems where necessary
If employers are going to use an online monitoring system to ensure that employees are working, this will need to be reflected in the contract of employment. However, it must be kept in mind that this may breach the implied duty of trust and confidence which goes to the heart of any employment relationship. The implication here is that neither the employer nor the employee will take any action which could destroy the relationship of mutual trust and confidence required to have a contract of employment.
Such monitoring may also ultimately be counterproductive if employees do not feel trusted sufficiently to undertake their work. Generally speaking, most employees regularly do more than required expectations but in the case of work-shy employees, it may be helpful to have a monitoring system in place.
Feel free to contact us if you need legal advice on creating and implementing a hybrid working policy in your workplace.