Hybrid working

While the mass global migration to home working started as a necessary but temporary lockdown measure, the COVID-19 pandemic continues to prevent a return to “normal”. However, businesses are recognising the benefits of home working, which is fast becoming a permanent reality for millions of employees around the world, either on a full-time or hybrid basis (a combination of both workplace and home working) .

Even as a short-term response to COVID-19, home working en masse raised both logistical and structural challenges. Businesses had to move quickly to set up the infrastructure and equipment to enable remote working and manage the panoply of risks related to a remote workforce. Remote working as a longer-term or even permanent option raises additional challenges that may have been overlooked in the early months of the pandemic, from compliance with employment law rules to potential impacts on organisational culture and employee expectations.

Companies are taking various approaches to remote work. Some organisations have elected to permit employees the freedom to split their working time between the office and their primary residence. Other companies have gone fully remote, with employees allowed to work from home permanently, whilst others are more interested in mandating remote work for certain employees.

Although on the face of it some may assume that workforces in the industrial’s sector will still be required to physically work at their employer’s workplace, such as those employees who are manufacturing a product, there are still a large number of employees who do not need to fulfil their duties exclusively on-site. A company’s research and development team, human resources department, administrative and IT staff, are generally able to work on a hybrid basis.

Given the likely increase in requests from employees to work, at least part of the time, remotely, you will find some tips and considerations to help your remote working strategy runs smoothly.

Determine eligibility and set expectations

Establish clear objective eligibility criteria for remote work in order to ensure consistency and minimise the risk of claims of discriminatory treatment. Criteria may include the nature of the employee’s position and whether job duties can be performed remotely, the employee’s seniority, the availability of supporting technology and equipment, whether data privacy and cybersecurity issues can be addressed, the conditions of the employee’s home, performance issues, etc. Employers should also plan a process for receiving and considering work-from-home applications.

Another key issue is setting expectations, not only with respect to hours and location of work, but also ways of working (e.g. work deliverables, availability during business hours, response time, working time tracking requirements, treatment of other commitments such as childcare responsibilities).

Employers are also urged to consider steps to preserve their flexibility to terminate remote working arrangements.

Ensure a common understanding of “remote”

An employer should determine at the outset where it is willing to let employees work. Does the employee have to work from a primary residence in the same region/country as their original jurisdiction of work? Can an employee relocate to a different region/country? Defining the parameters of remote work will enable the employer to appropriately scope and respond to risks.

Ensure your employment contract and policies sufficiently protect your business

With employees working remotely, employers will need to ensure they are protected against the disclosure of confidential business information. Of course, there is an implied duty of confidentiality which applies equally to homeworkers and hybrid workers, but employers will also want to include an express confidentiality clause in a homeworker's or hybrid worker's contract, clearly defining what information is confidential.

Employers can look to go further still by ensuring that there are also additional measures in place, such as forbidding access to the computer systems or documents by household members and by ensuring all data is sufficiently protected with passwords and encryption. An employer may also wish to consider a requirement for an employee to have a secure filing cabinet and facilities for confidential disposal such as a shredder or a confidential bin.

Additional provisions that should be included in the employment contract of a home worker or in an employer’s home working policy include:

• An obligation on the employee to adhere to working time limits including taking adequate rest breaks/rest periods
• Agreement about provision/cost of equipment/services and care of employer’s equipment
• Agreement about security of and access to work equipment at home
• An obligation on the employee to attend work premises when requested
• A right for the employer to visit the employee at home at agreed times for agreed purposes
• Agreement in respect of insurance obligations
• Provisions for termination of the home working arrangement

Ensure your employees are sufficiently protected

Employers have a duty to protect employee health and safety and to provide a safe place and system of work – these obligations continue to apply in respect of individuals working from home. As such, an employer should ensure that the working environment of an employee working at home is assessed for health and safety risks. Employers should also provide equipment for people to work from home safely.

Concluding remark

While mass remote working started as a response to the pandemic, the genie is now out of the bottle with respect to the possibilities of working outside of the office. As more employers consider flexible work options as a way to attract talent, build resiliency and/or manage costs long-term (e.g. smaller real estate footprints, fewer personnel and vendor needs), it will be critical to consider the legal requirements and considerations for implementing remote-working. With careful planning, companies can implement a remote work model to meet business and employee needs and compliance obligations.