My family is constantly frustrated by the fact that my response to any question is almost always one (or invariably more!) questions. As an employment lawyer, I’m always looking to understand the context, the motivations, and what practically the employers I work with are looking to achieve – before answering any question. (As you can probably tell, I also find it hard to switch off!)
Like many lawyers and other HR professionals we’re now frequently asked “Do you have a standard hybrid working contract we can have a look at?”, The answer to this particular query is always an easy one, “No”. To produce such a contract there needs a lot of questions to considered.
With “hybrid”, “blended” or “Work 2.0” type queries we see many employers building on what they’ve been forced to adopt over the last 15 months and taking a narrow view on what is a much wider question about how the future of their organisation and their worker’s lives look.
In our view, now is the time for employers to ask themselves a wide range of questions and to think about what the answers mean for them and their people. It is a key opportunity for re-evaluation and reinvention.
So, we thought we’d share with you 15 questions (and more!) that we feel (as employment lawyers) you should be asking yourself as you evolve into the next era of work.
- Do you actually need to change your employment contracts? Many employers that we speak to are asking themselves whether they can say for certain now what may be needed for the future. They are trialing approaches and openly communicating and discussing with employees their options and the relative benefits of each. For many, it is just too soon to have a clear view of what the long-term contractual requirements will be.
- Is now the time to change your approach to how roles and teams are structured? Do you need to think about job crafting/role design or other approaches to organising your work roles? What must be done at the workplace – what may be done elsewhere? How do you culturally manage the fact that some employees’ roles may allow flexibility as to workplace and time of work, when other groups will have no or very limited flexibility?
- How do you deal with employees seeking a permanent change to home-working or flexibility as to the workplace? Do you require a formal flexible working process to be adopted? How do you balance the business reasons considerations needed to decline a request, with your general overall approach to flexibility elsewhere? How do you make sure you don’t leave yourself open to the risk of a discrimination claim?
- How will you consult with your employees regarding any changes and discuss any workforce issues? Is now the time to review your relationship and strategy with regard to trade unions, works councils or employee forums or put a collective information and consultative group in place?
- Will your pay strategy change? What are the potential consequences of changing employment contracts and losing any differentiation as to work location? It may help with talent attraction and provide a wider pool of workers, but does this create issues in terms of any regional pay-banding/material factor considerations for any elements of your pay strategy? Can you continue to justify additional payments or benefits to specific groups of staff by location e.g. London weighting?
- How do you manage the separation of work and private life? Could WFH mean that your staff can relocate from the UK and work anywhere? Will you have to change the way you record working time, leave and rest breaks to comply with the Working Time Regulations? Do your managers display the behaviours and respect the necessary boundaries between work and private time?
- Do you need to make reasonable adjustments? Will you need to replicate reasonable adjustments that are made in the office for disabled employees who work from home for all, or part of the week?
- How does homeworking affect your diversity and inclusion strategy? Have you carried out an equality impact assessment on the proposals? What would your objective justifications be for any differences between protected groups? Are they legitimate and proportionate? How will this influence recruitment strategies and practices such as onboarding, mentoring, training and progression.
- What are the financial considerations? Will you share any savings that you make as an employer on your physical footprint with staff to support any element of home-working? Do you require employees to provide any minimum level of capability to work remotely e.g a specified broadband provision, minimum amount of data transfer? If so, and employees are not reimbursed for such costs, are you comfortable that this doesn’t create a National Minimum Wage issue? If you do contribute to home-working-related costs, do you and your employees understand any tax-related consequences of doing so? There’s a key difference between a homeworker and an employee that has the option to work from home, so you need to consider how you describe your staff.
- How will you manage remote working health and safety? How will you meet your duty of care to provide a safe place and system of work? Do you need to consider lone working protections?
- Do you need to upskill your managers? To what extent do you need to address, and to equip line managers to consider and identify, issues related to your employees whose private lives may be impacted by any decision to work remotely? What support will you provide to staff who are at risk of domestic violence or mental health problems associated with isolation and loneliness? Do staff feel safe to raise these issues/requests for support and have a clear avenue to do so?
- How do you make working time count? What can we do to maintain productivity gains and not slip back into old ways which have come with reducing travel/lost time? What focus can we bring to making the physical time that people have together at the workplace really count?
- How do you manage performance remotely? And how do you equip your line managers with the skills needed to do so? If you intend to use remote monitoring of performance, are you able to justify this to your staff and manage any concerns that they have? Will you be doing so in compliance with the Information Commissioner’s Office guidelines? Can you justify the intrusion if challenged by the ICO or through a social media campaign?
- How will you manage confidential data? The possibility of theft or disclosure of data held at employees’ homes and the destruction of confidential information are important issues you need to consider. Does your cyber or other insurance cover the working and practical arrangements that you’ve put in place?
- Can working from home help toward your environmental considerations? Can the changes that we’ve been forced to make over the last 15 months help to frame the people-related environmental goals and savings that we will need to make as the UK works towards its net zero 2050 targets? Can you use this as a motivation for workers and/or a commercial differentiator for your organisation?