The restrictions imposed during the COVID-19 pandemic have changed the way many office-based staff work. In March 2020, the Government asked people to work from home if they could and at least 46% of the working population did so at some point during 2020 and 2021. According to a bunch of recent surveys, many of these workers don't want to go back to their traditional working patterns.

Organisations are having a major re-think about how they want their workplaces to function in the long term. Many are considering introducing agile and hybrid working patterns to give staff the option of combining working from home with going into the office.

In this briefing, Joanne Moseley, Professional Support Lawyer at Irwin Mitchell, looks at the issues you will need to consider if you are thinking about introducing a voluntary hybrid/agile working policy.

1. What is meant by hybrid/agile working?
The concept of agile working focuses on work as an activity rather than the place it's performed. People work where, when and (to some extent) how they wish to do so. It can include working at multiple sites, at clients’ premises, at home or in other suitable places or outside of the typical 9-5.

Hybrid working is a relatively new term that can include agile working, blended working or split working patterns or arrangements. Staff attend the workplace for part of their working week and work from home, or elsewhere, remotely for the rest of the time. Although hybrid working usually involves homeworking, it's not the same as where an employee works all (or almost all) of their working hours from home.

2. Will agile/hybrid be restricted to certain roles?
Before introducing a formal policy, you'll need to decide whether to exclude certain job roles from its scope. Obvious examples are cleaners, receptionists and security staff who need to be physically present in order to do their jobs. But there might be other roles that are also less conducive to hybrid working, such as those that require continued or close cooperation with colleagues.

Then you'll need to decide how you are going to determine applications. The following issues may be relevant:

• Can the employee carry out the main functions of their role from home?
• Do they need daily, or regular, face-to-face supervision or management?
• Are they self-motivated? Can they work without direct supervision? Can they separate their work and home lives?
• How much attendance on site is reasonably required?
• What is the ratio of hybrid workers and homeworkers to site-based employees in the relevant work group or department?
• Will it impact on other colleagues?
• Do they have a suitable home or other remote working environment available? Will they be sharing it with others who are also working from home? Will they have to supervise children or look after other people during their working time?

3. How flexible will the arrangement will be?
Do you want your hybrid staff to stick to working their contractual hours (such as 9-5) or do you have core hours during which they must work, but can be flexible outside of these? Do you want to agree a fixed pattern of days the employee will come into the office and those where they will work from home (or elsewhere)? Or will you allow more flexibility and, if so, how will it be determined?

In some cases, you'll want to agree a fixed schedule, but in others you'll be happy to give the employee complete flexibility over where and when they work.

Whichever option you choose, make sure that the employee knows that you may ask them to come into work on specific days (even if they fall outside of the days when they ordinarily work in the office) to attend team meetings, provide cover for other staff, or deal with other unexpected issues.

4. How will staff apply?
Any request to change where an employee is required to work will constitute a statutory flexible working request under section 80F of the Employment Rights Act 1996. You'll need to comply with the statutory procedure, which imposes strict time limits around your decision making, gives employees' the right to be accompanied and allows the employee to appeal against your decision if they don't get exactly what they want.

Hybrid working is a new concept and one option is to ask employees to speak to their manager first to talk through what working arrangement they want. Their manager should then explain the process they need to follow.

5. Do you need a trial period?
Unless you're confident that the arrangement will work without difficulty, it's sensible to agree a trial period. Make sure that the employee knows how you will determine whether the trial has been successful and what will happen if it isn't.

Remember that if you are following the flexible working procedure, you must notify an employee of your final decision within three months of their request. Therefore, if you do want to try things out first, you will need to agree with the employee (in writing) to postpone the final decision until the trial period has ended.

6. Changes to their terms and conditions
Once you've reached agreement, you'll need to make changes to the employee's contract of employment to reflect the new arrangement. You'll need to set out the employee's normal working hours and the days of the week they are required to work. You must also specify whether such hours or days are variable and, if they are, how that may vary or how that variation will be determined.

The contract should make it clear that the employee is responsible for making sure they take adequate rest breaks and work in an environment that is free from distractions. It's quite common to see provisions included where the employee agrees that they will not work from home if they are also responsible for looking after children or dependent relatives.

You may also wish to consider adding in other contractual rights, such as the right to enter the employee’s home to install, maintain and service equipment, recover your property on termination or to carry out risk assessments.

7. Carrying out appropriate risk assessments
You must carry out a suitable risk assessment in all locations where your staff wish to work - including their homes. You'll need to identify any potential hazards and take appropriate measures to reduce any associated risks, so that they are as low as reasonably practicable. You don't necessarily have to send a trained health and safety assessor to each individual’s home. If the work is low risk, there are alternatives such as giving home-based employees basic training on risk assessments so they can carry out the initial review. If these flag up any issues, you can get advice from a more qualified assessor. Or, your usual risk assessor can conduct an initial assessment over the phone with the employee. Many organisations are asking staff to submit photos of their working area, light source and window coverings to check they are suitable.

You probably did a quick risk assessment of someone's homeworking environment at the start of the pandemic. If you've not revisited this, now is the time to do so. What might have been acceptable in the early months of first lockdown, such as working from a sofa, isn't sustainable in the longer term.

Your risk assessments should also include the risk of stress. Homeworkers are particularly vulnerable to stress-related illnesses because they may feel lonely and isolated or have difficulty in separating home and work life. We recommend that you develop a strategy to measure engagement. This will help you to spot any warning signs and take steps to address these at an early stage.

Keep records of your assessments and review them regularly.

8. Setting boundaries
Encourage staff to take regular breaks and to make sure that they adhere to daily and weekly rest periods. Check in with them regularly; ask them if they are having difficulties disconnecting and step in if they appear to be always online.

Make it clear that people don't have to respond to emails/phone calls, etc. outside of their working pattern. Ask them to update their work diaries to ensure that colleagues have visibility of their availability and whereabouts and to set up an automatic reply when they are offline that directs them to someone else who can deal with the issue if it's urgent and can't wait until they are back at work.

9. What equipment are you providing and who is responsible for insuring it?
You'll need to decide if your staff can use their own devices when working from home or away from the office. If you provide them with a laptop/phone/tablet, etc. can they use these for personal use too? Is your equipment covered under your insurance policy or does the employee need to provide insurance cover?

It's also sensible to remind your staff to notify their home and household contents insurer of their homeworking arrangements. They should also check to make sure that their remote working arrangements don't breach any insurance policy, lease or mortgage conditions, etc.

10. What expenses will you cover?
Are you going to reimburse staff for reasonable telephone and broadband internet charges incurred when working from home? Do they need to provide itemised bills before you process these? And what about any other associated costs, such as heating, lighting, electricity and printing, etc.?

Make it clear what you will/won't cover in advance and set out any conditions that apply.

11. Protecting your confidential information and complying with data protection rules
If you haven’t got one already, ensure that you have a carefully written confidentiality clause in the employee’s contract, which makes it clear what you define as confidential information and the steps they need to take to protect it.

If staff use their own laptops or mobile phones, you'll need to check that they have appropriate malware software in place which is kept updated.

You should check whether you need to update your Data Protection Policy and consider doing a data impact assessment for hybrid working. You may also need to amend contracts of employment to include the express right to monitor employees’ data, including their emails and internet usage.

You may also want to put in place additional safeguards to protect your information if a member of staff is likely to work in public spaces. These might include prohibiting the use of public computers or wi-fi for business activities. You could provide laptop screens to minimise the risk that someone could take a discreet photo of sensitive information.

12. Creating a policy
It's helpful to put in place a policy that sets out your approach to hybrid working, how you will assess individual requests and the safeguards you will put in place to make sure the arrangement works for both parties.

Joanne Moseley is a Professional Support Lawyer at Irwin Mitchell.
For more information on introducing hybrid working practices contact Elaine Huttley.