FAQs about the return to work and hybrid working arrangements

As we get closer to an end to lockdown restrictions many employers are now beginning to consider what a return to working life will look like. In this briefing, we examine some of the most frequently asked questions about the return to work and hybrid working.

For the vast majority of employers in the services sector, the pandemic has drastically shifted what a normal working environment looks like and resulted in a huge shift to home working.

Some employers, such as Morgan Stanley and Goldman Sachs have made public statements supporting a return to a 100% working from the office model, while others are now keen to reduce their overheads completely and pursue a 100% remote working model.

Many employers prefer to adopt a middle ground and pursue a hybrid working strategy. However, a shift to a hybrid working arrangement throws up many potential issues for employers that need to be considered in advance.

Do we need to change employment contracts if we adopt a hybrid working model?

Before the pandemic, most employment contracts stipulated that employees’ normal place of work was the office. This was, of course, something that the pandemic made impossible for significant periods of time for many.

Employers considering a move to a hybrid working system may be wondering whether this will mean that they need to change employment contracts for their existing staff. Some contracts may already permit the employer to change an employee’s normal place of work or working arrangements on reasonable notice.

If employment contracts do not allow such flexibility, a belt and braces approach would be to ask employees to document their agreement to any change in writing. Employers who do wish to formalise these changes have the option of achieving this by consent, imposing the change or terminating employees’ contracts and re-employing them on new terms. In most cases, consent is likely to be the simplest route forward.

Terminating the employment of employees who do not agree to changes will require consultation and may also expose the business to statutory claims such as unfair dismissal, as well as potentially triggering collective consultation obligations. Imposing changes is not a risk-free route either and employees may work under protest after the change has been implemented or argue that they have been constructively dismissed.

Many employers, particularly those who adopt a flexible model going forward, may take the view that, if changes have been agreed in consultation with the workplace and by consent, they are comfortable with not seeking written confirmation of the change and relying on an employee’s ongoing conduct as evidence of their acceptance of the new arrangements.

Irrespective of the approach that they take with existing staff, employers who do not already have language in their contracts allowing them flexibility to change an individual’s place of work may at least want to amend their standard terms of employment for new employees.

What if we don’t know how we want to work when we return to the office?

Having worked remotely or largely remotely for many months, the patterns of hybrid working that best suit a business, or a particular team may not be clear yet. For many employers, it will be a question of trial and error to determine the pattern of working that best fits the needs of the business, its clients and its staff.

For example, some employers may initially wish to trial having certain days where everyone attends the office. However, such arrangements may become impracticable or even illegal in the event of a third (or even fourth) wave. They also create a demand for larger premises for a small proportion of the week which will then be empty the rest of the time. Other employers may start out working on one hybrid model and need to adapt it as a result of the practical difficulties encountered, such as ensuring adequate supervision for staff.

Employers should bear in mind that the model of hybrid working that they adopt now may need to be revisited in the future. It is important that this is communicated to staff at the outset and that employers do not contractually commit to a working model that may need to be changed.

Transparency is key and employees should be clear that there will inevitably be further review as a hybrid model is trialled. Employers who do keep their working arrangements under review should consult with staff and give them notice of any anticipated or proposed changes.

If employers are amending the terms and conditions of staff to allow for hybrid working arrangements, they will also need to ensure that their contractual terms are sufficiently broad to enable them to alter arrangements on an ongoing basis.

What if some people are unhappy about coming into the office?

Inevitably not all staff will be pleased with a move to hybrid working. Some may prefer a full-time working from home model and others may prefer to work full-time in the office.

The latter group of employees may be easier to appease, and many hybrid working models can easily accommodate employees working in the office for more than a few days. Employees who make flexible working requests and ask to work full time from home are considered further below.

For some employees, the fear of catching or passing on covid may be driving a reluctance to work from the office. For example, because they, or someone that they live with, are in a vulnerable or shielded category. If an employee’s health condition is a disability, then unreasonably refusing to change their working arrangements could be discriminatory. Employers should take the time to understand these concerns and assess what measures they can introduce to address them.

Employers should also bear in mind that those raising health and safety concerns or refusing to attend the office on health and safety grounds can have additional legal protections and these situations will require careful handling.

Can we require all staff to be vaccinated when returning to the office?

For a full discussion about whether employers should require all staff returning to the office to be vaccinated, please see our recent ‘no jab no job?’ webinar.

How do we deal with flexible working requests?

Employees with over 26 weeks’ service can make a flexible working request for any reason. Many employers are anticipating an increase in flexible working requests over the coming months.

On the face of it, flexible working requests are relatively easy to refuse. An employer must give one of eight prescribed statutory reasons, which include a detrimental effect on ability to meet customer demand or a detrimental impact on quality or performance.

However, employers faced with requests to allow people to work from home for all of their working time may find it more difficult than they did before the pandemic to refuse those requests. For example, are they concerned about lower quality work because there are fewer opportunities for supervision when remote working? Employers should also consider what evidence they have in support of that from the past 12 to 18 months.

Even if an employer’s reason for refusing a request falls within a prescribed ground under the flexible working legislation, that refusal could still give rise to a discrimination claim (on the grounds of sex, for example, where someone has requested flexible arrangements to accommodate their childcare commitments).

How should we deal with people who want to work abroad?

There have been increasing numbers of people who have begun to work 100% remotely over the last 18 months or so and many have been requesting to do so from abroad.

If an employee wishes to work abroad on a part-time or full-time basis, employers will need to consider carefully the tax, immigration and employment law implications at the outset.

By way of example only, individuals working abroad will need the appropriate visa arrangements to do so – a holiday visa or a right to be in the country will not necessarily give them the right to work in that jurisdiction. Employing someone who works remotely abroad may also trigger tax or social security obligations in the country in which they work for both the employer and the employee. By working abroad either some or all of the time, the employee may also benefit from local statutory employment law protections.

Employers also need to ensure that line managers are alive to the risks above and do not informally approve working arrangements of this nature (either explicitly or implicitly) without informing HR and the business of them.

This note is prepared for information purposes only and addresses some complex legal issues, it should not be used as a substitute for obtaining legal advice.

If you have any questions on the topics raised in this note, please contact your usual BDBF contact or Amanda Steadman (AmandaSteadman@bdbf.co.uk).

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Will employees really be given the right to work from home forever?

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In the last few weeks the press has reported that employees are to be given the legal right to work from home forever. How realistic is this? In this briefing, we explain the proposals for reforming flexible working laws and what this might mean for employers.

It’s true to say that most workers have indicated an appetite for some degree of permanent homeworking, even when the pandemic has passed. A survey of staff working at 500 financial services firms in the City found that 70% felt that homeworking through the pandemic was a positive experience since it allowed them to avoid the daily commute and gave them more time for leisure pursuits and family. Another survey of working parents found that 15% wanted to continue with permanent homeworking and 55% wanted a hybrid form of working but with no more than three days in the office per week.

Recent press reports suggest that the Government agrees with them and plans to give employees the legal right to work from home forever. But just how realistic are these reports? The old adage “don’t believe everything you read in the papers” springs to mind. Although proposals to shake up flexible working are afoot, it’s unlikely that this will mean wholesale homeworking. Indeed, the Prime Minister’s official spokesperson is reported to have said this month: “It’s important to stress that there are no plans to make working from home the default or introduce a legal right to work from home”. In this briefing we look at what has actually been proposed and when any changes are likely to come into force.

What are the proposed changes?

The Government does intend to change the law to make flexible working a “Day 1” employment right and the default position for all job roles, save where an employer had a good reason not to allow it. We don’t know much more than this about the proposal, but it seems that the idea is to shift the burden from employees having to persuade the employer to accept flexible working for their roles, to the employer having to justify why it cannot be allowed.

It’s not yet clear how employers will be able to do this. It’s possible that they will be able to rely on the same or similar grounds that justify a refusal of a flexible working request under the current regime, namely:

it would cost too much;
inability to reorganise the work among other staff;
inability to recruit more staff;
negative effect on quality;
negative effect on the business’ ability to meet customer demand;
negative effect on performance;
not enough work for the employee to do when the employee has requested to work; and/or
planned changes to the business, for example, plans to reorganise or change the business and the request will not fit with these plans

If so, it should be relatively easy for an employer to justify not allowing flexible working, including permanent homeworking. That said, where an employee has been working effectively from home for a long period of time, then this may be more difficult.

We also don’t yet know what, if any, employment rights will be available to employees where an employer failed to comply with the new law. Under the current regime, employees can bring claims for failure to comply with the flexible working request process, but compensation is limited to a maximum of eight weeks’ pay (and capped at £4,532).

In order to recover meaningful compensation, employees usually have to bring other claims such as indirect sex discrimination or constructive unfair dismissal. Although a recent case has made things easier for women complaining that working patterns are indirectly discriminatory, it remains the case that pursuing such claims in the Employment Tribunal is not something that most employees will wish to do.

When are the proposed changes going to come into force?

The Queen’s Speech in 2019 outlined plans for a new Employment Bill which would deliver the changes outlined above. However, the onslaught of the coronavirus pandemic meant that the Bill was not brought forward in 2020.

Two years later, the Bill has still not materialised and the 2021 Queen’s Speech delivered on 11 May 2021 also made no mention of it. Nevertheless, the Government has said it is still committed to bringing forward the Employment Bill “when Parliamentary time allows”. In its response to the Women and Equalities Committee report on the gendered impact of COVID 19, the Government said it remains committed to the proposals but will hold a public consultation before making any changes.

That consultation has yet to be published. Assuming it is published in or around July 2021 and runs for three months, we are unlikely to know the Government’s final position until late 2021. Legislation would then need to be passed in Parliament, meaning that the law will almost certainly not change this year.

Separately, on 30 June 2021, Tulip Siddiq MP will introduce a 10 Minute Rule Bill in Parliament which provides that flexible working becomes a Day 1 employment right available for all job roles and that all forms of flexible working should be listed in job advertisements. Although this Bill will not become law, it helps keep the pressure up on the Government to follow through with its commitments.

What should employers do now?

Most employees will be asked to return to the office before this change comes into force (if it ever does). Remember that under the existing regime, a returning employee may (if eligible) make a flexible working request, which could include a request for permanent homeworking.

Where an employee has been working from home throughout the pandemic, then this could make it more difficult to refuse such a request. Employers will need to assess whether there are legitimate grounds for refusing such a request, for example, if the quality of the employer’s product or service has deteriorated or the employee’s performance has dipped.

However, the reality is that many employers are tackling the issue of flexibility head on and voluntarily introducing some form of hybrid working, which is likely to suit the majority of employees and quite possibly achieve savings for employers. In short, working practices are evolving, but the gloomy predictions of empty offices and deserted cities are unlikely to come to pass and certainly not as a result of legislation in the near future.

If you would like to discuss your approach to flexible working please contact Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

Gender critical beliefs are protected under the Equality Act 2010 and the European Convention of Human Rights

In Forstater v CGD Europe and others the EAT held that gender critical beliefs, including beliefs that biological sex cannot be changed and is different to gender identity, are protected beliefs under the Equality Act 2010 and the European Convention of Human Rights.

What does the law say?

Workers are protected from discrimination in employment on the grounds of their religious or philosophical belief. However, only philosophical beliefs which meet a certain standard are protected. In order to be covered, a philosophical belief must satisfy five criteria. Namely, the belief must:

be genuinely held;
be more than a mere opinion or viewpoint;
concern a weighty and substantial aspect of human life and behaviour;
have a certain level of cogency, seriousness, cohesion and importance; and
be worthy of respect in a democratic society and not be incompatible with human dignity or conflict with the fundamental rights of others.

In the last few years, Tribunals have had to grapple with the question of whether gender critical beliefs meet this standard.

In October 2019, in the case of Mackereth v Department for Work and Pensions and anor, an Employment Tribunal held that a Christian doctor’s beliefs that God created males and females and that people cannot choose their gender or change their sex were not protected beliefs as they were incompatible with human dignity and conflicted with the fundamental rights of others. Dr Mackereth’s appeal of this decision is due to be heard in October 2021.

A few months later, in December 2019, at a Preliminary Hearing in the case of Forstater v CGD Europe and ors, an Employment Tribunal held that Ms Forstater’s beliefs that being male or female is a biological fact (as opposed to a feeling or identity) and that people cannot change their sex were not protected beliefs as they were not worthy of respect in a democratic society and were incompatible with human dignity and conflicted with the fundamental rights of others. Ms Forstater appealed this decision and her appeal was heard in April 2021.

By contrast, in October 2020, in the case of Higgs v Farmor’s School, an Employment Tribunal held that Ms Higgs’ beliefs that people cannot choose their gender or change their sex were worthy of respect in a democratic society and were protected beliefs. However, the Tribunal also found that Ms Higgs had not been disciplined and dismissed because of those beliefs, but because of inflammatory language she had used in Facebook posts which could have led readers to believe she was homophobic and/or transphobic. Ms Higgs is seeking permission to appeal this decision.

Also relevant is the Tribunal’s decision in September 2020 in the case of Taylor v Jaguar Land Rover Ltd, where it was decided that a worker who was transitioning from male to female, and who self-identified as non-binary and gender fluid, was protected from discrimination on the grounds of gender reassignment despite not undertaking a surgical transition.

This briefing considers the Employment Appeal Tribunal’s (EAT) decision in Ms Forstater’s appeal. This is important because it is the first appellate (and, therefore, binding) decision on the matter.

What happened in this case?

Ms Forstater was a visiting fellow of CGD Europe and also worked on specific projects for them on a consultancy basis. CGD Europe is linked to the Centre for Global Development based in the US.

Ms Forstater believes that:

Being male or female is a biological fact which is not capable of being changed and is not a feeling or identity. As a result, in her view, a trans woman is not really a woman and a trans man in not really a man.
A person can identify as another sex, ask people to refer to them by their identified sex and change their legal sex, but this does not, in fact, change their actual sex.

In late 2018, Ms Forstater began expressing her beliefs on her personal Twitter account. Colleagues from the Centre for Global Development in the US saw her tweets and raised concerns that they were transphobic and offensive. The matter was investigated, and the decision was taken not to renew Ms Forstater’s visiting fellowship and to end her consultancy work.

Ms Forstater claimed that she had suffered direct discrimination and harassment because of her philosophical beliefs. At a Preliminary Hearing, the Employment Tribunal held that Ms Forstater’s beliefs satisfied the first four criteria needed to acquire protection from discrimination (see above). However, they decided the beliefs were not worthy of protection in a democratic society because they were absolutist and meant that she would refer to a person by the sex that she viewed as appropriate, even if this meant violating their dignity or creating an intimidating, hostile, degrading or offensive environment for them. Although it was true that Ms Forstater had a right to freedom of expression (arising under the European Convention of Human Rights (ECHR)), this was not an absolute right and could be infringed where the beliefs being expressed violated the rights of others, as was the case here.

Ms Forstater appealed to the EAT.

What was decided?

The EAT allowed the appeal, holding that Ms Forstater’s beliefs were protected philosophical beliefs under the Equality Act 2010.

The EAT said the Tribunal had erred in its application of the fifth criterion needed to acquire protection from discrimination, namely that it be worthy of respect in a democratic society and not be incompatible with human dignity or conflict with the fundamental rights of others. Only the most extreme beliefs the expression of which would be akin to Nazism or totalitarianism or which incited hatred or violence would be excluded for failing to satisfy that criterion.

Ms Forstater’s gender critical beliefs did not seek to destroy the rights of trans persons and did not fall into that category. Although her beliefs may be offensive to some and could even result in the harassment of trans persons in certain circumstances, they were protected under the right to freedom of thought, conscience and religion under the ECHR and as philosophical beliefs under the Equality Act 2010.

The EAT acknowledged that some trans people would be disappointed by the judgment and it took the opportunity to correct any misconceptions about the decision. The EAT stressed that:

the EAT had not expressed any view on the merits of either side of the transgender debate and nothing in it should be regarded as so doing;
it does not follow that those holding gender-critical beliefs are free to misgender trans people with impunity. Whether or not such conduct would amount to harassment or discrimination will be for a Tribunal to determine in a given case;
trans people are protected from discrimination and harassment. The protected characteristic of gender reassignment may apply to a proportion of trans people, but there are also other protected characteristics that could potentially be relied upon in the face of such conduct; and
employers are capable of providing a safe environment for trans people. Employers continue to be vicariously liable for acts of harassment and discrimination against trans people committed in the course of employment (save where reasonable steps have been taken to prevent such actions).

The case has been sent back to the Employment Tribunal to decide whether Ms Forstater was, in fact, discriminated against and/or harassed because of her gender-critical beliefs.

What does this decision mean for employers?

Employers must now be ready to navigate this clash of rights.

On the one hand, gender critical beliefs are protected beliefs and workers should not be discriminated against or harassed for holding such beliefs (for example, by being gossiped about, shunned or labelled as a “transphobe” or “bigot”).

On the other hand, trans workers are also protected from discrimination and harassment on the grounds of gender reassignment (for example, by misgendering them) and potentially other grounds. Further, other workers who are not trans themselves may find the expression of gender critical views to be offensive and also complain of harassment.

In either case, employers can be vicariously liable for acts of discrimination or harassment committed by its workers. What practical steps can employers take to manage this risk?

Update relevant polices to reflect the fact that those holding gender critical beliefs and trans workers are protected from discrimination.
Set out the standards of behaviour expected from staff, including the need to treat colleagues with dignity and respect. Explain that disciplinary action will follow where staff fail to meet such standards, up to and including dismissal.
Ensure that such policies are actually communicated and read by staff. Consider asking staff to provide a written acknowledgement that they have read and understood them.
Deliver equality training to staff, ensuring that it is thoughtful and forcefully presented and refreshed at regular intervals. As a recent case showed, a failure to do this may mean you cannot rely on the defence that you have taken all reasonable steps to prevent discrimination.
Respond quickly and effectively to complaints of discrimination or harassment.
Continue to monitor this fast-moving area of law, in particular, the appeals in the Mackereth and Higgs cases and also the forthcoming Tribunal decision in the Forstater case itself.

Forstater v CGD Europe and others

If you would like to discuss any issues arising out of this decision please contact Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.