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Hybrid working is here to stay

September 27, 2022

The great ‘working from home experiment’ (also known as the Covid-19 pandemic) demonstrated that productivity levels could be maintained for most office-based roles whilst working from home. This is largely due to the technology available now to enable office worker to communicate on video link and to work paperless. Emmanuelle Ries and Sara Kennedy have been advising foreign headquartered clients with implementing hybrid working policies in the UK. It would appear that employers in Denmark, Germany, France and Italy are also having to be open minded to accommodate their employees’ wish to continue working from home. But the UK is certainly leading the way with hybrid working.

From fully office to fully remote to hybrid

Prolonged working from home created its own issues. For example, workers often found it hard to curtail the working day when their office was within their home environment. Few employers have required workers to return full time to the office after the government guidance to work from home was lifted in early 2022. In mid-August 2022, the BBC reported recent survey findings showing that UK workers are going into the office just 1.5 days on average compared with 3.8 days pre-Covid.

From a legal point of view, whilst remote working since March 2020 has been a temporary variation to their place of work in order to comply with government guidance and public policy to ‘work from home if you can’, it did not however mean a permanent variation to workers place of work. Accordingly, with Covid restrictions on going to the office lifted by governments, employers were technically within their rights to require their employees to now work in accordance with the terms of their contracts.

Civil servants earlier in the summer received Jacob Rees-Mogg’s calling card on their empty desks in a bid to encourage all staff to return full-time to the office, as well as facing an office attendance rate league table (with government departments ranked against each other). This move sparked controversy – and the government has abandoned a demand for full time return to the office with an acceptance of hybrid working – and decided to sell some of its buildings empty of office workers.

So it appears that hybrid working has become the norm for office workers all over the country. Generally, the pattern is 3 days in the office, 2 days at home. But in London in particular, employers are struggling to enforce this.

The benefits of hybrid working v remote working

More recently, a large City London law firm announced that staff must either return to the office three days a week or take a 20% pay cut if their preference is permanent home working. Very rapidly, the law firm was forced to backtrack in light of the negative public reaction it received following the announcement. Its employees did not want to be told that they have to work in the office for any minimum period, let alone full time. Nor, it appears, is a pay reduction expected despite the personal savings in terms of time and money commuting to the office. With energy process rising this winter, it may well be that coming to work in the office becomes more attractive financially than running your own home office. The question of how to address salary differentials will remain however – it is not new that salary is based on location and full-time remote working is likely to be treated as attracting a lesser salary (and therefore a lesser cost to the employer).

The benefits of working with colleagues in-person however should not be underestimated. Hybrid working allows time for valuable interaction while in the office to create a balance between home and office environments. The productivity gains put forward to justify remote working from home are presumably made thanks to the reduced interaction with colleagues which may otherwise detract us from our tasks or interrupt our train of thought. Lunch invitations are possibly fewer at home, and as lunch time decreases, working hours increase. Similarly, the removal of commuting time may be converted to working time.

However, working isolated at home could erode social skills, create resentment at the loss of personal time, reduce business and learning development opportunities and, ultimately, career development. More crucially for the business, it also erodes the company culture, and the loyalty employees feel towards their employers. It also makes it hard to pass on skills and know how to new generations.

Flexible working applications

Looking back on the relatively few flexible working applications pre pandemic, by and large, making such applications were either ‘not the done thing’, even though it would help immensely with childcare pick up and drop off and energy levels generally, or employers were reluctant to set a precedent and agree them. When considering flexible working applications pre-pandemic, employers’ concerns would invariably be driven by a lack of trust that the worker would work and sustain productivity levels as well as remain available to work efficiently with clients and colleagues.

Since the pandemic, such concerns will be harder to justify for employers and it is likely that instead we will see arguments about the boost to creativity that could be achieved through in-person collaboration and the boost to wellbeing from being present with colleagues rather than working in isolation. In many ways, if an employer has adopted hybrid working, there should be less of a need for employees to make formal flexible working applications. A detailed hybrid working policy should be able to address employees’ concerns about work life balance whilst providing a framework around the priorities of the business.

Embedding hybrid working into the employment contract

Once employers have had time to reflect as to what arrangements work for their organisations, if it is likely that there will not be a return to pre pandemic office attendance patterns, then employment contracts will need to be amended to reflect this. Most existing employment contracts require full attendance in the office and employers may decide to embed hybrid working patterns in the contract or even fully remote working. The question of whether salaries will be cut for those fully remote workers is likely to be on the table at this point as employees’ consent to the variation of contract involving a salary cut will be required. It may well be easier for employers to hire new recruits working remotely at a lower salary than to face the challenge of getting such a variation agreed by existing employees.

Coming back to the City law firm who proposed a 20% salary cut to employees choosing to work fully remotely, as this figure does not appear to have been based on London weighting, or indeed to reflect the likely lower living costs of employees living outside London and travel costs, could it be that 20% represents the value of in-person collaboration with colleagues and the added value colleagues have on another’s development and wellbeing? Whilst working remotely does not prohibit team collaboration or training, it is not without difficulties (e.g. video calls fatigue and isolation and crucially, the inability to pick up on your colleagues’ state of mind in the way that humans can when meeting in person).

In the long term remote working is unlikely to prove a sustainable alternative to full attendance at the office. Hybrid working and flexibility to move between home office and company office would therefore appear to be the best of both worlds.

If you would like to discuss your hybrid working arrangements, devising a policy or changing terms of employment, please contact the Employment Team.

The material contained in this article is provided for general purposes only and does not constitute legal or other professional advice specific to your situation and should not be relied upon. Appropriate legal advice should be sought for your specific circumstances and before any action is taken.

© Miller Rosenfalck LLP, September 2022

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