Legal And Organisation Issues Around Hybrid Working (Video) – Employment and HR

Whether it’s hybrid, agile or the “new normal”,
employers need to take a wider view than just the legal
formalities. Equally important to your success will be clarity in
communication, expectation setting, avoiding presenteeism,
sub-conscious bias, FOMO, access, equipment and much more. All of
these issues are discussed in this on-demand webinar to help you
plan for the future.

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Transcript

Jane Fielding: Good morning everybody. I’m
Jane Fielding, I’m head of the Employment Labour and Equalities
team here at Gowling WLG in the UK and I’m delighted to welcome
you to this the third in our series of annual update webinars that
we’ve been running last week and this week. The topic for today
is hybrid working, the legal and also the organisational issues
that hybrid working presents for employers across the UK. We’ve
all been grappling with this, as we come out of the pandemic and it
raises fundamental questions about the nature of the sort of work
wage bargain, what are you actually providing as an employer? But
it also raises some very practical questions for organisations and
we’re going to do our best to deal with as many of those as we
can in the next 40 minutes. Judging by the fact that we’ve got
nearly 600 of you registered this morning we’re clearly
striking a chord with this topic.

So our speaker today is Martin Chitty, one of my fellow partners
in the team. Like all of us, he’s been advising a number of
clients in different sectors on the different challenges that
hybrid working poses for them. So Martin is going to speak for
about 25 minutes. We will leave time at the end for questions
before we finish at 11:40. If we don’t get time to answer your
question then don’t worry, we will follow up with those
afterwards so you will get an answer one way or another. If you
want to ask a question, please can you use the Q&A function
– it’s in the bottom middle of your screen on Zoom
– so if you put your question in there, I’ll be keeping
an eye on those as Martin talks and we will pick them up at the
end.

If you have any tech issues, hopefully that won’t happen but
if it does, please can you also use the Q&A function to ask for
help. Lucy Strong, who is our technical support this morning, will
do her best to sort that out for you. And I will say this again at
the end but we will be sending round feedback forms by email to
those of you that have attended today. If you could fill those in,
it only takes a couple of minutes and we do read them and take them
into account, but I’ll flag that when we close. But for now I
will turn myself off and I will hand over to Martin.

Martin Chitty: Right, good morning everybody.
Hopefully… well, it will become apparent in a moment but
I’m having a few technical problems which, is that I can’t
make the slides move forward. But in the background, Lucy I think
has miraculously and rather pleasingly just fixed that for which
I’m extraordinarily grateful. So I’ll move on to the first
of my slides… I think Lucy may have to do that for me
– there we are – thanks very much, Lucy, as ever.

So I’m going to split this into two parts if I may. I’m
going to talk about the legal issues because that’s the area in
which I feel most comfortable, it’s the area in which I’ve
got some expertise as you might hope, and I’m going to talk
about that in the context of some fundamentals like: contractual
variation, statutory rights, monitoring health and safety, etc. One
thing I would mention at this stage is that we’re faced with a
whole raft of issues when talking about hybrid working, not just
obviously legal ones, but something to bear in mind going forward,
and this is relevant I think to some of the issues you face
organisationally within business, is that there is a consultation
exercise on the way at this point in relation to disability gap
reporting to follow on from gender pay gap and discrimination. And
that is something which in this context I think you’d need to
be particularly careful and mindful of. Simply because, there are
issues which will impact disproportionately on those with
disabilities when we’re talking about hybrid working and
I’ll come back to that later in the context of more generalised
comments on discrimination.

Now the second part of this talk is about organisational issues.
Now I don’t as a lawyer profess to have the understanding that
all of you have got about those organisational issues. Yeah, Jane
and I are involved in running our team and we’re partners in
our business, so I can talk about what we see here, and we’ve
been in a form of hybrid working now for four or five months I
suppose. In fact today is my first day back in the office having
had another two months of homeworking and, so we’re going very
hybrid at the moment.

But I want to talk about organisational issues based as I say on
what we’ve seen and what we’ve picked up from our clients
and what we hear in the market, and around all of this there are
some other complications. There’s a lot of talk, isn’t
there, about the Great Resignation, about how we continue to engage
different generations within our workforces. I think the last two
years homeworking, now hybrid working, has seen a massive
acceleration towards an acceptance that homeworking is more
acceptable, workable, deliverable than was ever the case before.
It’s not a technological change. The tech was there before,
it’s just that people wouldn’t allow people to use it
because they didn’t want to and then they had no choice and now
the cat’s out of the bag rather and the genie’s out of the
bottle.

The impact it’s had is about how we work together and
co-operate and how we as organisations need to ensure that our
workforce engage with us on a day-to-day basis. There’s a lot
of talk, both in the legal and the HR community, about wellbeing
and its importance where people are working in different and more
isolated ways. If you work at home all the time, as many of us will
have seen in the past two years, things can become isolated,
detached, the walls start to close in a little bit. And employers
generally talk a good game about wellbeing – 92% of employers
said that it’s vital. The question I suppose is whether they do
anything about it. Something like 83% of employers provide employee
support programmes, counselling, those sorts of things which are
intended to address wellbeing but only 23% of those who have access
to those services actually use them.

So what I’m going to talk about in all of that context is
expectation as against need, some key factors for success which,
we’ve seen and which we see our clients working towards, how do
we incentivise and optimise people’s approach, conduct and
work, how do we value and measure their outcomes?

But first, and this is because we don’t have the opportunity
just to chat in the normal way, we wanted to ask you some
questions. So what we’re going to do is run five short polls.
The questions will pop up on the screen miraculously because
Lucy’s dealing with it and you’ll get an opportunity to
read them. Some of them have two, three or even four choices and
then we’ll go through to the answer. It’ll all be done
quite quickly, it probably takes about a minute per question, and
it’s just to see for the benefit of me principally because
I’m being selfish about this but also for everybody else, it
gives everybody an opportunity to see what the experience is if you
like in the room. So we’re going to move onto some speed
polling and if Lucy can put up the first of those questions, that
would be really helpful.

So question 1 – I will read this out because it gives you
time to think: “How well did your business cope with
homeworking version 1?” That was mass lockdown, everybody at
home. “Extremely well and it was pretty seamless”? Did we
do it “quite well, we pulled together and made the best of
it”? “Just about made it out alive” or “It was
a complete disaster”? And so if you’d like to tick the box
or tick the bubble and hopefully we’ll get some answers to the
questions and I’ll let you do that now.

So hopefully it’s all working. I can’t see what all of
you are doing at this point, so the results will become
miraculously available… here we go. So 47% of people thought
it went extremely well and was pretty seamless and 51% thought it
went quite well. Nobody, and this is interesting, isn’t it,
thought it was a complete disaster, and very few of you thought you
just about made it out alive, which is reassuring. And that I think
reflects our experiences of business and the experience we’ve
seen and heard reported elsewhere. Most people managed to make the
switch pretty quickly, pretty effectively, obviously it suits
professional services and white collar type businesses, much less
so for manufacturing. It’s difficult, as one of my clients
reminds me, to make earth-moving equipment remotely.

So we’ll close that one down and we’ll go on to question
2. So question 2 is more straightforward: “How many of you
have started hybrid working already?” And it’s a yes/no
answer, so I’ll let you think about that one, I’m sure you
will know whether you’re doing hybrid working. Once you’ve
had an opportunity to do that Lucy is going to put the answer up on
the screen. Here we go – yeah, so 84% of you are doing some
form of hybrid working and 15% of you are not. Now at the moment I
don’t have in front of me a full list of all the people who are
sitting in on this session, that would make things a lot easier,
but I suspect for some of you that will simply be because it’s
not practical in your environment. Things need to be done on site,
you know, in the factory, on the shop floor, out on site, wherever
it may be, you simply can’t do that on a remote basis, so
hybrid working doesn’t really work, but 84% of you are working
on some sort of hybrid basis. Now there are bound to be lots of
different variations of that. I don’t pretend to understand
what they all are at the moment, some will be more or less
permissive and some may involve actually almost entirely
homeworking as against any sort of mixed model.

Let’s go on to question 3 if we might. Question 3 –
“Is hybrid working easier or more difficult to manage than
everybody being at home or in the office?” So like what some
refer to as pre-lockdown or pure lockdown, and the choices I’ve
given you here are “Yes, it’s more difficult”,
“It’s about the same” or actually “It’s a
lot easier.”  So if you’d like to think about those
and vote accordingly and once you’ve had a chance to do that,
which won’t take very long I’m sure, we’ll move on to
the answers and see what we get to. I think in some ways this is
the most interesting. Now, right, so at this point… yeah,
actually 40% of you saying it’s more difficult and I think our
experience is that that’s true. That does reflect our
experience. We’re trying to manage a variable model, we have
people not all in on the same day and we have some people more or
less keen on being in the office, and obviously hybrid working can
entitle people to come in every day if they want to. “It’s
about the same” – 43%.

From other surveys I’ve seen, this is a more balanced view
than I would have expected in many respects. Lots of organisations
are saying actually hybrid working, whatever the benefits it
brings, actually creates more of a management challenge. There are
more variables involved and it’s more difficult. So, you’re
obviously an extremely astute group and it’s going really well,
and in fact 17% of you are saying that it’s easier than
everybody working at home. Now that’s interesting and if we
were in the room I’d be saying, well, let’s open the
conversation up. I can’t do that but if you’d like to put
comments into the chat, Jane’s going to moderate those and then
we’ll try and see what’s making that easier, that would be
very interesting and very useful for all of us I think.

Let’s move on to question 4. Question 4 is this: “How
far along the journey are you in embedding hybrid working to
balance business, customer and employee needs?” This is the
super-complex issue if you like and the last of the difficult
questions. So “We’re doing it very well and have achieved
a great balance actually.” “Some progress but more to
do.” “Progress has been and will continue to be slow and
gradual but we do not want to rush this.” I think there’s
a sensible element of caution in that. “We’re
actually… we’ve stalled and we’ve given up, it’s
just not going to work in our organisation.” And again
there’s no right answer here, it’s really to see what
people are doing and what their experience is, so I’m sure all
of you will have plumped for the one that best suits or best
reflects your experience at the moment.

So Lucy if you could put the answers up… okay, so 20% of
you or thereabouts think “It’s going pretty well and
we’ve achieved a good proportion of what we’re trying
to.” “Some progress”, 49% – I think that’s where
the… well, evidently the largest group if not an absolute
majority are in that position at the moment. “Progress has
been quite slow.” But actually the most interesting is perhaps
the bottom one, only one per cent of you have gone “It’s
not going to work.” And again if we were all together and we
had all morning or all afternoon we could talk about that. Some of
that will be down to organisational need and preference and the
nature of your business. As I say there is no right or wrong
answer.

And the fifth question which is intended to be a bit lighter
hearted is this one which is: “How many of you would really
prefer to go back to office only working as the model and put the
genie back in the bottle?” And it’s perfectly legitimate
to go “Oh yes please!” or to say “Yeah, but the
tide’s against us, so we don’t have a choice, this is a
change we have to accept.” “No, actually we’re not
going to do that, we’re going to embrace the change and the
shift in our staff’s expectations and we are going
hybrid.”

So I think you’ve probably had a chance to look at that one.
Again there are no names attributed to any of these answers, we
can’t see who voted which way. Okay, so 85% of you, “This
is the new normal, we’re going to embrace the change and shift
to proper hybrid working.” A very small percentage have been
brave enough to say “Actually, no, we want to go back to the
way it was.” And 13%, perhaps the pragmatists amongst us, say
“Well, the tide’s against us but we don’t have a
choice so we’re going to give it a go.” So Lucy, thank you
for that and if you could move us on to the next slide please.

So let’s talk a little bit about some of the legal issues
involved here. Now in lots of ways there’s been lots of talk,
hasn’t there, ever since lockdown first started, that this was
going to be a very new and very different working arrangement. But
I would say actually is it’s not… the legal principles
are very, very well established and they come back down to contract
and some statutory provisions as well. So the starting point is
this: moving from an office-based system where your contract says
you will work in the office to one where it says you may work at
home some of the time, all of the time, however it’s to be set
up, is nothing short of a variation. But, you do need to ensure of
course that you get consent to that variation. Simply telling
people that they’re going onto a hybrid working plan and that
they’re going to be compelled to work at home where they can
– obviously some environments won’t permit that –
is not going to give you a binding variation.

So one of the questions here is: are you making this permissive,
that they can work from home some or all of the time, or are you
making it mandatory? And one of the issues we keep coming across
talking to clients about this is the need for absolute clarity in
terms of what the new arrangement is going to be. And then are we
talking about a temporary or a permanent arrangement? So from the
responses you’ve given to our questions, it looks like most of
you have decided you are going for this in a quite serious and
permanent way. For those of you who are still edging down that
path, are you going to put in some sort of temporary arrangements
to see how it goes for six, nine or 12 months, which gives you as
an employer a right then to say, well, actually we’re not going
to continue with this because it’s creating problems which are
simply insurmountable or the benefit isn’t worth the downside
that we’re also seeing. Because if you make a one-off binding
and permanent variation there is no way back without a further
negotiation.

Now I know from talking to one or two clients who’ve
historically been very loath to go for any sort of flexibility,
they’re having to change because everybody else around them
either has changed, or had changed more than they had, and
they’re losing people all the time. Clarity, as with all
contracts, comes back to working times, hours, days, place, method
of delivery, and those sort of in some ways mundane points but
they’re very important. There’s an increasing convergence
between home and work if you work from home. So are you expecting
people to keep to specific and rather strict working times and
hours in the way that they would in the office or is there going to
be some greater flexibility? I’m sure we all get emails from
colleagues saying “I now work on a hybrid and flexible model.
The fact that I’m sending you an email at 11 o’clock does
not mean I expect you to reply to me straight away.”

So think about these issues. If we’re having people working
people working from home, do we need to be mindful, and I would say
we do, about issues regarding discrimination? Although it’s
very early days it is likely, based on past experience on flexible
working patterns, that particularly women are likely to see greater
flexible working than men and that’s an historic pattern. There
are also issues about those who have movement issues, mobility
issues, wanting to work from home simply because it’s easier
and more effective from their point of view. But does that then
lead to those people being out of sight and out of mind? Are we
going to face issues around conscious and indeed subconscious bias
and those are things that I think all organisations need to be
aware of. And of course the background to all of this is that even
if we go to a hybrid model as a standard, individuals still have a
statutory right to request flexible working which is, in my terms,
a further variation from the hybrid model. So if you go to a 50 50
hybrid model but somebody says “Actually I want to make a
flexible working request to go 100% homeworking” you’ve
still got to give due proper and careful consideration that you
have to do under any other circumstances.

Now monitoring – this is a vexed issue. I’m not going to
pretend to cover it in any detail this morning but do think about
it. Monitoring does seem to be something about which people do
obsess from time to time and there are legitimate steps you can
take to monitor people’s activities but the question I would
ask is why are you doing it? Is it because you don’t trust
people to work from home? And by now if you’ve had a
homeworking position in place during lockdown, haven’t you got
sufficient evidence of distrust or is it, to quote the social
psychologist Taylor Swift, is it just that the doubters of
homeworking are going to continue to doubt as they go along? Are we
actually monitoring their effectiveness and delivery and output?
The question is how do you do that? I would say you need to do it
overtly and make sure that people are well aware of what you’re
doing.

Now health and safety – not something I personally deal
with, my colleagues elsewhere do that – but you do still have
an obligation if people are working from home to carry out
workplace assessments. That obligation does not go away. I was
doing my own assessment of my own workplace last week from home
with the assistance of some guidance we’d been given and
it’s about making sure my screen’s in the right place and
all those things. So they are different considerations but the
considerations and obligation still arise, and I would come back
again to this question about employee wellbeing: are you putting
the right measures, checks and balances in place to ensure that
people are in contact, that people’s wellbeing is being checked
out from time to time?

Now a couple of other issues to think about. One is this issue
of remuneration against location. If you historically have
everybody working in the city of London and they’re paying
London weighting and you’ve now got people working remotely and
they’ve moved back home to somewhere far less expensive, are
you going to continue to pay them London rates? And if you’re
not, are you going to be able to retain them? So there’s a
growing challenge here. We’ve seen this with some of our
clients and ourselves where organisations are offering effectively
homeworking at near London rates rather than having people
commuting day to day and that does make, going back to this
question, retention a very, very difficult issue.

And lastly location, this is more of a tax issue than anything
else, if you allow people to work super-remotely as in abroad, are
you going to create problems about their tax, your social security
obligations as an employer and also the inadvertent creation of a
permanent establishment, so a place of business abroad which might
render your business liable to tax in a foreign jurisdiction?

So that’s quite enough of the legal issues I think.
Let’s have a look at one or two organisational issues. So I
think it’s way too early to reach any decision as to whether
this is a temporary phenomenon, it’s a thing of its time, or
whether this is a permanent shift. I’m less convinced of it
being a permanent shift now than I was 12 months ago and that was
before we came out of lockdown simply because I think some of the
challenges of managing the hybrid working model are actually only
now coming to the fore and it’s more difficult than we all
thought. I think some people, and we see this with some of our
colleagues here, actually although they can work from home, they
find it preferable for lots of reasons which I’ll come onto to
come in and work in the office every day other than when we tell
them they shouldn’t. So a temporary or a permanent shift? My
honest answer to that is I don’t know.

The second question I think is, is either side obliged to do it?
And one of the reasons for doing the poll at the beginning was to
see how you’ve approached it and the vast majority of you have
engaged in and adopted some form of hybrid working. Now that
doesn’t suit every organisation, but where it’s possible
doesn’t mean you’ve got to do it. There’s no
legislation on this point at the moment, so if as a business you
can explain and rationalise out why hybrid working doesn’t work
then it’s perfectly legitimate to say “We’re not going
to do it” or “We’re going to abandon it because it
doesn’t work.” But that then goes back to the question of
quite what did you put in place about hybrid working when you did
do it?

This question of whether it works for all stakeholders, by which
I mean the employees, the business and its customers, will vary
vastly from organisation to organisation. I think what we’re
seeing is in some environments it works perfectly well, there’s
great tolerance and support from our client stakeholders if you
like because many of them are in the same position that we have
been in, so they accept people working remotely or hybrid working
or however you want to describe it. I think the much bigger issue
actually is internal within your organisation. So if I take a
hypothetical manufacturing business where they’ve got 60% of
the workforce making things on the shop floor, that cannot be done
remotely. You might have a hybrid model where people work on the
shop floor some of the time but they can’t work from home at
all. So that’s… that doesn’t really work in any sort
of context. But for the admin staff, the white collar role if you
like, it would be perfectly possible to do that and many
organisations did during the height of the pandemic when they were
on lockdown. So are you going to continue to do that going forward
or is there going to be pressure and if you do go down that line,
do you create a sort of class structure going back to the sort of
sixties and seventies labour market model of a difference between
blue and white collar jobs and does that create internal division
and discontent? Is that the way you want your business to be
perceived or, do you just have to front it out and say “Well,
we can’t do it for everybody, it’s just not possible.”
What I want to go onto next are some key issues in what we’ve
seen and what others have seen as to how to make this work.

So what really has made hybrid working successful? And these are
general principles, they’re not my original work. So the
question, the first one is focus. What do you need to be done in
the office and what can be best done working from home? And it
might be that this requires some sort of group exercise to see how
people think they can best organise their working day and many of
these ideas and comments come from a practitioner called Henry Rose
Leeson who you will have heard of.

The big thing here I think is good communication, good, regular
– and by “good” I mean brief, regular, concise,
clear. What is it that people need to understand? One of the
interesting impacts of the use of tech in remote working is that
it’s very easy for very senior management to talk to large
proportions of the workforce all at the same time because you can
do it on a format like this or Zoom or whatever else you want to
do. The challenge I think for management in this situation are the
joint issues about emotional intelligence. You’ve got to be
much more aware dealing with people remotely than you do when
you’re dealing with a person across the desk. So you’ve got
to pick up on people’s cues, the nuances of their behaviour,
and that’s where I think the wellbeing piece comes into play
most particularly. I think we’ve seen that different forms of
delegation and management, planning and prioritising work have come
to the fore. The way we do things in the office is not the way
necessarily that best works. We’ve got to be much more
flexible, we’ve got to solve problems as we go along simply
because this is a different world.

Jane: I think we may have lost Martin there.
Can you hear us, Martin? I think because he’s dialled out, so
we’ll just give him a moment or two to come back. While he does
that I will share a couple of other comments that you’ve made
on the Q&A function actually about those polls. So somebody was
talking about homeworking during lockdown was only feasible for
them because they had so many people furloughed which was an angle
that we’ve not seen before. Oh, Martin, you’re back.

Martin: I am, yes, I wasn’t entirely aware
that I’d ever gone away, but there we go.

Jane: You had, yeah.

Martin: Oh, right, okay, so I was just talking
about the need for greater trust and trust in technology is a great
thing of course. But much of the success or failure of hybrid
working is going to revolve around whether actually people trust
their colleagues to do things when they can’t see them. I would
have hoped personally that we’d got past that at this
stage.

If we move onto the next slide, this is a piece of independent
research done by Dr Peggy Roth who’s a behavioural psychologist
working with Leesman. This is… actually she’s based in
the UK, some of the research I think was done in the US, and this
was really to see what it is about what people value in terms of
working, in terms of coming into the office, because there is an
issue here about why would you want to go into the office unless
it’s worthwhile? If you can work at home and avoid commuting,
why come into the office at all? And these are the things that
people value. Most of all they value socialisation, socialising
with their colleagues, seeing people, being able to talk to them
rather than simply working remotely and being on their own. The
next is interesting which is about learning and that’s both
formalised learning and informal learning, learning by seeing what
other people do. So those are the two biggest things, but the
gradation here isn’t all that huge actually.

The third is by hosting, by actually being able to meet with
people generally, clients and customers. Collaboration which in
many ways is one of those things which organisations, well,
there’s been a lot of comment about, people saying “Well,
you can’t do complex things working remotely.” There’s
much less evidence for that and all of you I’m sure will have
seen some of the more, let’s use the word
“hysterical” comments from some sectors of the market
about the absolute need to be in the same room to work. Now some
would say that’s a somewhat recidivist or old-fashioned view
and not borne out actually by what people value. Now you could
represent a lot of this data by saying what is it that’s
necessary and appropriate? And you’d probably get some very
different results. I think it would be useful for all
organisations, and we’ve certainly started to do this, is to
take information from people about what they value and how they
want to approach this so that we can then look about matching the
two up.

I mean, there is a big question here I think for employers about
how far do you go in trying to reconfigure all of your working
relationships and obligations so that everybody gets exactly what
they want and that sort of outcome seems pretty unlikely, it’s
a Nirvana situation, I don’t think it’s ever going to work.
So it might be a question of what works best and what is least
distracting for people or best meets their needs going forward.

So the key points to take away from all of this, and this
you’ll be pleased to know is the final slide, is clarity of
expectation and this covers both the legal formalities if you like
about office hours, where you work, all those sorts of things,
what’s expected from you, and also clarity from management in
terms of their expectation. The worst of all possible worlds is for
management to think they’ve explained it one way and everybody
else to have heard something completely different. You all know
that, I don’t need to spell that out.

But next is about contribution and delivery and this will depend
very much on your organisation and what you do and how you do it.
People can be as effective by working at night if that’s what
they prefer and that’s a super-hybrid form of working,
isn’t it? They don’t need to be in contact with anybody
else and the question of how and when they deliver that work. For
other organisations we all need to be working more or less the same
hours. This is not new. I suppose that’s the point I keep
coming back to. This is just a variation on challenges, legal,
social, organisational, that we’ve all seen before.

The next one, if – and I come back to this again –
if you’re going to have people and you want them in the office,
make it worth the trip. That doesn’t mean you’ve got to
provide coffee and doughnuts every day – that wouldn’t be
a good thing for all sorts of reasons! – but make it an
event, make it beneficial to them to come into the office, make it
have them doing something that they can’t do working remotely
and that gives them the upside, the incentive to come in. Because I
think the one thing that’s come out with hybrid working is that
people value being in the office and actually everything works
better, quicker. It’s good to see your colleagues, it’s
congenial, and it’s beneficial for all sorts of reasons. What
people actually hate is commuting because that’s dead time. All
sorts of organisations will have seen that production hours may
have gone up, particularly during the first phase of lockdown,
people didn’t have much choice, that’s all they got to do,
but actually coming into the office, actually the getting in there
is still a bit of a bore.

And the last and most challenging thing in lots of ways is
hybrid working requires leadership and management to change and in
lots or organisations that’s something that people aren’t
very good at. They expect all of you to implement change but
they’re not prepared to change the way in which they lead and
manage themselves. So it’s not perfect, and like either the
Crimean War or Communism, I can’t remember which one, it’s
probably too early to tell yet whether hybrid working is permanent
and whether it’s going to work at all in the long term.

Now Jane, back to you so we can look at some of the questions
that people have asked.

Jane: Thanks, Martin. Just before we go onto
the questions and I can see already we’re not going to get
through all of them because we’ve had quite a few, I just
wanted to pick up on a couple of comments that people have put in
in response to the polls, just to share that with everyone. So one
person is saying that the reason hybrid arrangements are easier for
their organisation is because the challenge they faced really was
supporting people who were working at home but without, you know,
who were struggling at home basically. So having that option for
some people to be in, as you said, Martin, if that suits them
better or in fact they need it because they don’t have a room
to work in or they’re trying to juggle family members who are
also at home then it gives you that flexibility, doesn’t it?
And, that conversely having the ability to have everybody set up to
do homeworking when it suits them is a cost but if you can do that
then it makes that hybrid option easier as well.

And somebody else is saying that they’ve got a sort of proof
of concept trial in place on a voluntary basis and then it will be
reviewed before any permanent contractual changes are broached with
staff. So I think that kind of all tallies with our experience
probably, doesn’t it?

Martin: I’d absolutely agree and I know
from talking to people, some organisations went very quickly to
abandoning office-based working at all and some are now backing
away from that decision. Unfortunately it means they sublet lots of
office space which they’re going to have to try and get back
and it’s proving difficult and other organisations are going
further and further away from office working and there was a
prediction about masses of office space being left empty. I think
people are taking a more cautious, rather slower approach to that
at the moment.

Jane: Yeah, but there are actually a couple of
questions about that which will probably make sense to pick up now.
So someone’s said if you go completely hybrid… sorry,
completely remote so you don’t have market at all, rather than
hybrid, would that mean that you’ve triggered a redundancy
situation?

Martin: Well, there’s obviously an argument
that you have because you are… it’s a place of work
redundancy in old money, isn’t it? There is no longer a job for
you at the office but you’ve been offered suitable alternative
employment presumably at the same or a very similar rate of pay,
doing exactly the same work with your same status and grading
without the inconvenience of coming into work. So yeah, you could
trigger a redundancy. There would be a strong argument there that
some would be acting wholly unreasonably to reject the proposal and
consequently they may lose the right to any statutory redundancy
pay. That wouldn’t of course apply in relation to contractual
redundancy pay but it’s a very good point and one worth
thinking about. Some people will be opportunistic about this if
they can see a significant tax-free payment in the offing.

Jane: Yeah, and a sort of similar question but
it applies whether you’re totally remote or hybrid, which is
what we’re focusing on today, can you as an employer reduce
that sort of London uplift in particular and/or salary if somebody
has moved a long way away in exchange for more homeworking? Could
you kind of make it part of the bargain I suppose is the
question?

Martin: Well, I think that’s a very
interesting and actually quite a complex question because on the
one hand – it goes back to the previous one actually –
is if you’re saying to someone, well, you can work on a hybrid
basis, there’s an argument there about a redundancy. If
you’re trying to say to them, well, you can work wholly at home
but for 25% less pay and you’re implementing hybrid working
elsewhere, are you imposing a variation to which they don’t
agree? If you’re saying we’re abandoning working at home at
all but we want you to work… sorry, if they’re going for
some sort of model in the middle then certainly there is going to
be a difficulty there. I think it perhaps comes down to the
relative strength of the bargaining positions. Certainly there are
rumours in the market of organisations who recruited people saying,
yes, yes, yes, you can, you know, live in leafy Lincolnshire and
come into London one day a week. They’re now saying, well, when
we said that what we actually meant was four days a week or
we’ll just drop your pay by 25%.

Jane: Yeah.

Martin: And for some people there will be that
balance to be made and as people get more and more used to working
from home, people may say, well, actually I’m still earning
more than I could by working conventionally in the local labour
market.

Jane: Yep, there’s quite a few questions
about provision of equipment, so if you are going to a hybrid
model, what obligation do you have as an employer to pay for, you
know, PC, monitors, printers, headsets, etc, and does that change
if you give people the option of working hybrid or if you require
them to do that part of the week?

Martin: Right, I’ll try and structure
this… is there an obligation to pay for people’s
equipment? Not specifically but you have an obligation to provide
them with a safe system of work, so expecting people to do long and
complicated spreadsheets on a small laptop sooner or later is going
to cause them problems with their eyes, shoulders and necks –
there’s lots of evidence for that. So I think we should be
looking at it the other way which is… a preventative
medicine here. We’ve got in place the right system of work, we
give them screens, we provide them with screens in fact to avoid
all of those problems and they will be more productive as a result
and you’ve a greater prospect of retaining their services in
that situation. Depending on how far you go in terms of whether it
is provided or gifted to them… making way for tax liability,
I don’t have all those answers off the top of my head. But
certainly I think I would advise clients strongly to look at giving
people the tools they need to perform otherwise they’re simply
going to either be less productive or they’re going to go and
work for someone else.

Jane: Yeah, it’s not a true choice I
suppose, is it, if they can’t actually work effectively?

Martin: No, it’s not.

Jane: Okay, we are at time, we haven’t got
to quite all the questions but as I said we will follow up
separately with those of you whose questions we didn’t get to.
So we’re also going to be sending round the feedback form
afterwards by email. As I said please do take a couple of minutes
to fill that in and we will read it to help shape future webinars.
We’ll be doing our summer mid-year review in June/July and
we’ll take a look at your feedback and shape those sessions
around that.

I hope that you can join us for the fourth and last in this
series of webinars on Thursday. We’re looking at an update on
developments in trade union rights. Appreciating not all of you
will be unionised, it still may be of interest because in our
experience, in a number of sectors, existing trade unions are
becoming more active and in sectors like the gig economy
they’re beginning to make inroads. So even if you’re not
unionised now there may still be interest in terms of the
developments. So that’s at 11 o’clock on Thursday and the
last one in this series.

Otherwise I’ll just say thank you very much to Martin and to
Lucy for operating the polls and to all of you who are listening
in. I hope you have a good rest of the day.

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