Home and hybrid working: current employment law essentials for people professionals
What do HR practitioners need to know and do regarding contractual issues and health and safety law?
What do HR practitioners need to know and do regarding contractual issues and health and safety law?
The CIPD has supported the people profession and employers in their response to COVID-19 since March 2020 and continues to do so by providing a raft of up-to-date guides and resources. CIPD provision includes supporting returning furloughed workers and planning employees’ return to the workplace. Several of our guides focus on aspects of employment law, such as our guide on flexible working measures for returning to the workplace.
This article sets out the main aspects of contracts and health and safety law. It includes what these mean for HR practitioners as they continue to play a pivotal role at the forefront of organisations still navigating their way through the pandemic. Being proactive in the main legal and employer dimensions of home and hybrid working right now will help promote good work and pre-empt litigation.
The sudden shift to home working for a large proportion of the workforce in the UK was a hallmark of the initial employer reaction to the prevalence of coronavirus. It is now anticipated that, for over a million people, home working is likely to stay to some extent, with the number of hybrid workers expected to increase correspondingly.
Hybrid workers are those who spend part of their time at their workplace and part of their time working from another location, such as their home. Our research on hybrid working indicates that the majority of employees want to keep working from home at least some of the time and will therefore benefit from CIPD tools, guides and a webinar on hybrid working. Our line manager guide on supporting hybrid working is especially helpful for HR practitioners and HR business partners in their collaboration with line managers responsible for hybrid working employees.
Employers using home or hybrid working arrangements need to act on a range of law-related aspects. These include:
Contractual issues are at the centre of planning and operating home or hybrid working, starting with flexible work.
There is currently a statutory framework for employees to make formal requests for a flexible working arrangement. However, new research reveals that nearly half of employees do not have flexible working in their current role despite the shift to home working, which sparked the CIPD’s recently launched campaign on making flexible working requests a day-one right.
Although any alteration to a working arrangement specified in an employment contract will generally be a material change to terms and conditions of employment, home or hybrid working may be agreed on an informal basis without the need to formally alter an employment contract. This may be as part of a flexible or agile working policy which allows an employee to choose whether, and when, to work from home and in the workplace, subject to business requirements.
Employers should ensure that they adopt consistent HR policies and practices for all employees in flexible working. This might be by requiring employees to make a formal request to amend their contract, or by implementing a policy of discretionary hybrid working for all or part of the workforce, for example.
An employer that opts for home or hybrid working to operate on a non-contractual, discretionary basis should be aware that the working arrangement may, depending on its nature, become an implied term of the employment contract over time. If it becomes a common and accepted practice, employees can argue they have a ‘custom and practice’ contractual right, should their employer decide to roll back on home or hybrid working.
Employers must be mindful of their duty of care to home workers. Employers have a duty under the Health and Safety at Work Act 1974 to ensure the health, safety and welfare of employees as far as is reasonably practicable. If an employer employs more than five people, it has a statutory duty to have a written statement setting out its general health and safety policy.
HR practitioners will often have had a responsibility in managing health and safety considerations during COVID-19. Health and safety duties apply equally to home workers as to other employees, a point which can be overlooked by organisations. Therefore risk assessments of employees’ home workstations are required.
A failure to comply with health and safety measures could be considered a breach of the mutual duty of trust and confidence under the employment contract, and reporting a health and safety breach may be a protected disclosure. HR practitioners should be aware that there may be an increase in claims on whistleblowing or constructive dismissal in relation to health and safety. Employers’ duties include a duty to consult with employees on health and safety matters, which includes measures in response to COVID-19.
HR practitioners have a very important role in considering the main aspects of statutory employment law for home and hybrid workers. Good employers will be actioning these aspects now. Employers who aren’t are more likely to face cases brought against them at an employment tribunal. Time will tell.
This autumn, government figures will be published on the number and type of cases that were raised by employees in the year 01 April 2020-31 March 2021 - a main part of the pandemic period. However, it is in the figures for the year 01 April 2021-March 2022 that we are most likely to see the total number of cases related to the issues outlined in this article.
Source: www.morton-fraser.com/knowledge-hub/employment-tribunal-award-statistics
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