New guidance for employers on implementing hybrid working

As the country emerges from months of lockdown restrictions, a new survey commissioned by Acas reports that around half of British employers expect to see a rise in staff working from home for some or all of the time. Another survey by EY suggests this expectation is well-founded. The Work Reimagined Employee Survey found that 80% of workers surveyed wanted flexibility in their job, with 40% wanting flexibility about where they worked for at least part of the week. In the light of this, Acas’ new guidance on hybrid working is well-timed and covers a wide range of issues for employers to consider. The guidance is split into five sections, each of which is discussed below.

Considering hybrid working for your organisation

The guidance notes that employers may be considering introducing permanent hybrid working of their own volition, or in response to an employee’s flexible working request. It points out the many positives of hybrid working including helping to:

increase job satisfaction;
attract and retain a more diverse workforce; and
improve trust and working relationships.

However, the guidance stresses the need for employers to give careful thought to where, when and how work could be done before making any decisions.

In terms of the “where”, consideration should be given to the use of technology, how teams will stay in touch, health and safety concerns and why certain tasks have to be carried out in the workplace. In terms of the “when” thought should be given to how important it is for work to be done at a specific time. And in terms of the “how” a checklist of different issues to think about is provided, including things like how new employees will be onboarded and how the workplace will be configured.

Employers are also urged to discuss their employees’ needs before making any changes. This includes things like their home working environment, whether any reasonable adjustments are required and whether they have caring responsibilities. Essentially, employers need to avoid a “one size fits all” approach – different arrangements might be needed for different job roles and different employees.

It is suggested that hybrid working arrangements are trialled for a short period to judge how they work. Where such arrangements are not possible (for some or all), employers are urged to discuss alternative flexible working options with employees and keep the position under review.

Consulting and preparing to introduce hybrid working

Before bringing in hybrid working arrangements, the guidance points out that employers may be obliged to consult with staff. This may be necessary to secure an employee’s agreement to vary certain terms of their employment contract (such as place of work or hours of work clauses). Additionally, the employment contract, or non-contractual policy, may state that the employer will consult with staff about organisational changes.

Employers may also have statutory obligations to consult with employee representatives where:

the proposals affect health and safety;
require changes to 20 or more employment contracts;
where the employer is party to a collective agreement with a trade union; and/or
the employer is party to an information and consultation agreement.

The consultation process involves explaining what the proposals are and inviting employees to provide feedback and raise any concerns. There are different ways of doing this, including face-to-face meetings and staff surveys. Employers should listen to any concerns and try to resolve them before introducing the changes.

Creating a hybrid working policy

There is no obligation to introduce a specific hybrid working policy and employers may feel that they can address hybrid working within an existing flexible working policy. However, the guidance indicates that it is a good idea to have a stand-alone policy since it can address in detail how hybrid working will operate and specify any limitations.

In terms of outlining how things will work, the policy could, for example, explain:

how someone may request hybrid working and how that request will be dealt with;
what equipment will be provided and how it will be set up (and, interestingly, the EY survey revealed almost 43% of workers wanted their employer to upgrade at-home hardware);
how health and safety risks will be assessed and addressed;
what, if any, insurance is needed; and
how staff will be trained and performance managed.

The policy could also set out any limitations such as any roles or tasks that cannot be performed at home and any restrictions on where homeworking can take place (e.g. not in a public place or overseas if this may trigger tax and immigration issues).

Treating staff fairly in hybrid working

Wherever staff are working they should be given access to the same work, support and opportunities for training, development and promotion. Line managers should communicate regularly with all of their reports, regardless of where they are located, and work should be allocated fairly and not according to location.

The guidance highlights the risks of directly or indirectly discriminating against people with certain protected characteristics. For example, it could be directly discriminatory not to allow a mother to work at home because of a concern that she will be distracted by her children, whilst allowing a father to work from home. Refusing hybrid working for certain roles could amount to indirect discrimination, for example, against disabled people who find it difficult to attend the workplace every day or against women who bear the primary childcare burden and have a greater need for flexibility.

In addition, employers must ensure that they proactively make reasonable adjustments for disabled staff where required, regardless of where they are working. For example, if an employee has a physical disability which is exacerbated by sitting down all day, it may be necessary for the employer to pay for a sit/stand desk to be installed at the employee’s home.

Supporting and managing staff in hybrid working

The guidance underlines that employers have responsibility for staff wherever they are working. This encompasses things like:

health, safety and wellbeing;
supporting mental health;
managing performance; and
providing training for hybrid working practices and more generally.

As far as performance management is concerned, it suggests that employers discuss with staff whether there is a need to monitor performance and how this could be done in a consistent manner when working in the workplace and/or remotely.

Comment

It seems inevitable that we will see a permanent shift towards hybrid working given the experience of homeworking over the last 16 months. As with anything in life, homeworking has its pros and cons, but most employers and employees would now acknowledge the benefits of some degree of homeworking. Yet the shift to hybrid working on a permanent basis is not without its challenges. Employers must ensure that not only do they meet their legal obligations, but that they make hybrid working a positive experience for staff. This guidance, together with our recent FAQs on hybrid working, gives employers a good grounding in the issues they need to grapple with in order to achieve this.

Acas Guide to Hybrid Working

BDBF is currently advising many employers and employees on the challenges presented by the coronavirus pandemic, including preparing for the return to the workplace. If you or your business needs advice on any coronavirus-related matter please contact Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

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Imposition of Saturday working requirement on a single mother was sex discrimination

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In Keating v WH Smith Retail Holdings Ltd an Employment Tribunal ruled that a female employee was indirectly discriminated against on the grounds of sex when her employer sought to impose Saturday working on her. It also said that she had been constructively unfairly dismissed.

What does the law say?

Indirect discrimination occurs where:

The employer applies a provision, criterion or practice (the PCP) to a worker who has a protected characteristic for the purposes of the Equality Act 2010 and applies the same PCP to workers who do not share that protected characteristic.
The PCP puts (or would put) people with whom the worker shares the protected characteristic at a particular disadvantage compared to those who do not share it (the group disadvantage).
The PCP puts (or would put) the worker to that particular disadvantage (the individual disadvantage).
The employer cannot show the PCP to be a proportionate means of achieving a legitimate aim (objective justification).

Many employment cases have recognised that women are more likely than men to bear the bulk of childcare responsibilities and that this may disadvantage them as a group.

What happened in this case?

Ms Keating was employed as a retail assistant by WH Smith. She was contracted to work flexibly for 20 hours per week (with a further eight hours per week when more staff were required). Her contract also stated that she may be required to work Saturdays, Sundays and/or public and Bank Holidays. She was a single parent with one dependent child aged eight and her childcare responsibilities meant, in practice, she only worked on weekdays.

In the early summer of 2018, her manager, Mr Cruickshanks, identified a business need to introduce a Saturday rota for the weekday staff. This was due to falling sales revenue in the store and budget constraints that followed from this. There was an anticipated departure of University students who worked weekends and Mr Cruickshank wanted to fill those shifts with the weekday staff. The proposal was for the weekday staff to work one in every four Saturdays.

Numerous meetings followed between Ms Keating and Mr Cruickshanks, where she highlighted her concerns about childcare. Ms Keating heard no more about the proposed Saturday working until September 2018 when she was rostered to work Saturdays. She reiterated her concerns and Mr Cruickshanks told her she would need to arrange shift swaps with her colleagues.

Ms Keating worked the first rostered Saturday but had to bring her daughter to work with her due to lack of childcare. Once again, she explained to Mr Cruickshanks that she had no one to look after her daughter on Saturdays. No satisfactory response was given. Ms Keating resigned on 22 October 2018 and claimed indirect discrimination on the grounds of sex and constructive unfair dismissal.

What was decided?

The Employment Tribunal upheld both claims.

Indirect sex discrimination

The Tribunal concluded that the PCP of requiring weekday staff to work one in four Saturdays put women at a particular group disadvantage when compared with men because, statistically, women are still the primary carers of dependent children and more women than men are single child carers.

The Tribunal used its collective experience and judicial discretion to assess the impact of the PCP to women at large as WH Smith did not clearly identify the pool of staff in the store (i.e. how many were men and how many were women, how many had childcare responsibilities of dependent children and how many had partners). The Tribunal concluded that Ms Keating was put at a disadvantage: she was a woman, a single mother who could not afford childcare and had no network she could call on.

The Tribunal also accepted WH Smith had the legitimate aim of needing to manage costs and the desire to share Saturday working fairly amongst the team. However, the aim was not proportionate. Mr Cruickshanks had not considered less discriminatory alternatives. For example, he had not asked any other employee whether they could work the Saturday shifts for Ms Keating and/or considered recruiting one dedicated member of staff to work Saturday shifts.

Constructive unfair dismissal

The Tribunal concluded that WH Smith failed to have any regard to Ms Keating’s childcare issues, despite there being several opportunities to address it. This conduct was likely to destroy or seriously damage the relationship of trust and confidence. In particular, the Tribunal noted that the express flexibility provisions in Ms Keating’s contract were fettered by the implied term of trust and confidence. Ms Keating had resigned in response to WH Smith’s reliance on this clause and she had done so promptly.

What does this decision mean for employers?

This case, and the recent decision in Dobson v North Cumbria Integrated Care NHS Foundation Trust, show that Tribunals are willing to accept as a fact that women bear the primary responsibility for childcare and this may limit their ability to work certain hours or working patterns. Any rigid requirement to work weekends, nights or unpredictable hours may well mean that group disadvantage will follow.

Employers should avoid imposing rigid and onerous working patterns on women with childcare responsibilities, especially single mothers without a support network as was the case here. Try to be as flexible as possible and open a dialogue with the employee to identify a pattern that works for both parties. Ignoring an employee’s repeated concerns is a dangerous strategy. Even if no compromise is possible, the efforts made here will help employers demonstrate that they have acted proportionately and also not breached the duty of trust and confidence.

Keating v WH Smith Retail Holdings Ltd

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

Employee stranded overseas at the start of the COVID-19 pandemic was unfairly dismissed

In the recent case of Montanaro v Lansafe Limited, an Employment Tribunal held that an employer unfairly dismissed an employee who was on annual leave in Italy when the first lockdown was announced and was unable to return to the UK.

What does the law say?

It is automatically unfair for an employer to dismiss an employee if the reason or principal reason for the dismissal is that:

in circumstances of danger;
which the employee reasonably believed to be serious and imminent;
the employee took (or proposed to take) appropriate steps either to protect himself and/or others from the danger or communicate these circumstances by any appropriate means to the employer.

Employees do not need any qualifying service to bring this claim unlike the two years required for standard unfair dismissal claims. Compensatory awards for automatic unfair dismissal award are also uncapped, whereas they are capped in ordinary unfair dismissal claims (at the lower of a year’s pay or £89,493).

What happened in this case?

In March 2020, M travelled to Italy to attend his sister’s wedding. By the time he was due to fly back to the UK, Italy had declared a national lockdown. On 10 March 2020, M went to the airport, however, he did not take his flight because he had concerns about health and safety as a result of Government announcements in both Italy and the UK. Furthermore, he believed he needed documentation from his employer to show that his journey qualified as essential business travel.

Whilst at the airport, M updated his employer about what had happened and asked for their advice. His employer told him that he should keep his laptop and mobile online and await further instructions. During the weeks that followed, M asked his employer whether they required him to return to the UK and, if so, to provide the documentation he believed he needed to travel. However, M’s communications with the company’s Managing Director, Mr Roby, were ignored.

Given the lack of direction from his employer, and the gravity of the health crisis in Italy and the UK, M remained at home in Italy. He communicated directly with a client, Boohoo, for whom he had provided services for many months. Boohoo agreed that M could work for them remotely from Italy.

On 11 March 2020, M’s employer sent a letter to his UK address purporting to dismiss him with effect from 6 March 2020. As M was in Italy, he did not receive the dismissal notice. The company claimed that M had travelled to Italy in breach of their annual leave booking procedure and that his absence amounted to gross misconduct. M first became aware of the termination on 1 April 2020 when he received an email attaching his P45 and final payslip.

M brought a claim in the Employment Tribunal for automatic unfair dismissal on health and safety grounds.

What was decided?

The Employment Tribunal upheld the claim finding that:

there were circumstances of danger given the declaration of a pandemic and the risk of catching a contagious virus about which little was known;
M reasonably believed the danger was serious and imminent; and
M had taken appropriate steps to protect himself and others by returning to his home in Italy and asking his employer for instructions and assistance with documentation. M had also forwarded appropriate information to his employer about the situation in Italy.

The Tribunal held that the real reason for the dismissal was because M had communicated the difficulties and dangers posed by the pandemic in Italy and the UK, and because he had proposed to work remotely from Italy until those circumstances changed. Accordingly, the dismissal was automatically unfair.

What does this mean for employers?

It should be remembered that COVID-19 dismissals are fact and context specific. Here, the fact that M’s claim related to the very early stages of the pandemic when little was known about COVID-19, and the death rate was rising exponentially, no doubt influenced the Employment Tribunal’s assessment of the claim. The situation now is rather different given the higher level of knowledge about COVID-19 and the presence of effective vaccines.

However, there are several scenarios where an employee who takes an overseas holiday may not be able to return to work as planned, and this raises the question of how employers should treat such absences. For example, if employees contract COVID-19 while overseas they will usually not be allowed to travel back to England (as a negative COVID-19 test is a requirement of entry). Alternatively, employees might test positive for COVID-19 on their return, meaning they will have to self-isolate. In either situation, the employer should treat the employee as on sick leave in the usual way, unless it is possible for the employee to work remotely.

Alternatively, new travel restrictions might be imposed while employees are overseas, meaning they cannot return to work. For example, if a green or amber list country is unexpectedly moved to the red list, this will usually mean that employees have to quarantine in a managed quarantine hotel for 10 days on their return. Assuming they cannot work remotely, the position on pay entitlements is unclear. On the one hand, the employee is unable to work and so the implied right to be paid would not apply, meaning it could be treated as a period of unpaid leave. However, the Courts have previously held (in the context of a suspension from work) that where employees are ready and willing to work, and an inability to work is a result of an external constraint, they may still be entitled to be paid. Either way, dismissing an employee in this position is likely to be automatically unfair.

The best course of action is to seek legal advice before taking any action against an employee who is unable to return to work after an overseas holiday

Montanaro v Lansafe Limited

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