Out-Law / Your Daily Need-To-Know

Hybrid and flexible working ‘conceptually very different’

Out-Law News | 04 Jan 2022 | 3:26 pm |

Anne Sammon tells HRNews about managing a combination of both hybrid and flexible working arrangements

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  • Transcript

    The UK’s Flexible Working Taskforce has published practical guidance on hybrid working for employers to address what they say is ‘the considerable interest in new ways of working’ caused by the Covid-19 pandemic. Hybrid working is a form of flexible work where employees spend some of their time working in the employer’s workspace and some of it working remotely, usually at home. 

    The guide is a good one and the section headed ‘People Management’ will be of particular interest to HR professionals. It carries the message that, ‘depending on the approach taken to implementation, managers may be required to manage requests for hybrid working, and so should be trained and supported in doing so, with clear guidance given on relevant employment law’.

    We agree with that and it’s a point made by Anne Sammon in her article for Outlaw: ‘Flexible Working Taskforce releases hybrid working guide’. She says: ‘employees will still have the right to make a flexible working request and the employer will need to fairly consider that request.’ She says managers will be hard pushed to refuse requests for flexible working simply because they differ from what’s on offer in terms of hybrid working. But will managers grasp that difference and what are the consequences if they get it wrong? Earlier I put those questions to Anne who joined me by video-link to discuss this:

    Anne Sammon: “So I think, first of all, it's really important to say that the two concepts are conceptually very different. Hybrid working is all about employers having flexibility and saying to employees we want you to work perhaps a minimum of this number of days in the office, or we're happy for you to work this number of days at home, and allowing a lot of flexibility whereas a flexible working request is a statutory right, although some employers will have extended the statutory right beyond just what the limits of the statute says, but a flexible working request is something that is almost set in stone, doesn't change, is forevermore and tends to be written very particularly from a legal perspective. So it tends to be things like, you have the right to work from home on a Wednesday, or a Thursday, whatever day it is. Contrast that to a flexible working policy, or a right to work from a hybrid perspective, and that will say something like you can work two days a week from home, so that they're very different and they have very different consequences.”

    Joe Glavina: “So will it mean that contracts of employment will need changing to reflect the new working arrangements?”  

    Anne Sammon: “So I think it all depends on what your employment contract wording already says. Many employment contracts that we've been looking at have got almost a built in flexibility in terms of location of work. So they will say things like your place of work is the company's offices, or such other locations as the company made determine as appropriate from time to time and with that type of flexibility the company can say, well, you can work from home. If you've got a very definite instruction that you must work from the company's offices that’s where you need to start thinking about whether there's a requirement to make a contractual change. Now, one of the things with hybrid working, what we've seen from a lot of clients, is that they want to have a kind of let's try it and see approach rather than embedding this forevermore so many organisations are thinking, well, at the moment we're happy for people to work maybe two days a week from home, but we don't know what the situation might be in a year, in five years, nobody can really predict where we're going with the pandemic and therefore they want that flexibility to be able to change it on a more ad hoc basis and if you build that into the contract, and say, you can work from home two days a week, in order to then change that, that's a contractual change with all the implications that come alongside that. So what we've tended to see is many employers wanting to stay away from hybrid working being a contractual policy so that they can at least argue that if in the future they need to change it and say, actually, this isn't working, we don't think there's the kind of levels of collaboration, for example, that we're expecting, and therefore we want you all to be in the office four days a week, instead of the three days a week, there's that ability to do that.”

    Joe Glavina: “Does it make sense for employers to offer a trial period with, perhaps, a review at the end, as we often see with flexible working requests ”

    Anne Sammon: “I think the difference with hybrid working is because there's that flexibility is difficult to see what a trial might look like. So what you tend to see with a hybrid working policy is that very kind of high level you can, with the agreement of your manager, decide which days you're going to work from home. I think if somebody is doing fixed particular days at home then a manager might say, well, let's see how this goes and essentially build in a trial period whereas actually where there's flexibility on both sides, you might decide that it's not actually appropriate because if both sides are willing to be flexible then that means that you probably will be able to tweak around the edges and see what works and what doesn't.”

    Joe Glavina: “So what’s your key message to HR, Anne?”

    Anne Sammon: “I think the key thing that I see as being the difference is that hybrid working is all about giving the organisation and the individual flexibility whereas flexible working, rather conversely, tends to be about giving the individuals and the organisation certainty. So if you think about them in those two different ways, hybrid working will allow you to give direction as to working in a particular pattern, for example the two days a week from the office, whereas flexible working requests tend to be more around I want to do this particular thing forevermore and these are the particular hours and days that I want to be set out in stone. I think what we are seeing at the moment is a lot of clients where they've implemented hybrid working policies and employees, because of childcare reasons for example, want certainty. So if you're an employer and you've said everyone can work from home two days a week, and you're an employee and you need to work from home on, say, a Monday and a Friday, that hybrid working policy doesn't necessarily get you what you want and so then you might put in a flexible working request and say, yes, I'm happy to work two days a week from home but I want those days to be Monday and Friday and I don't want them to ever change.”

    That Hybrid Working Practical Guidance was commissioned by the CIPD on behalf of the Flexible Working Taskforce and is, in our view,  a useful resource for HR. We have put a link to it in the transcript of this programme.

    LINKS
    - Link to Flexible Working Taskforce guidance on hybrid working