As 19th July, the “Terminus” date for lockdown restrictions has now passed, employers are finalising their plans for a potential return to the workplace in some form or another either gradually during the Summer or from September onwards.
Many employers will put in place hybrid working arrangements, but will these really be the best of both worlds for employers and employees, how will they work in practice & what can employers learn from employees who already worked flexibly a few days a week from home prior to the pandemic about what did and did not work well both from the employer and the employees’ perspective?
Whilst employers may wish to discuss their plans with the whole of their workforce, they may find it particularly insightful to seek the views of those employees who worked partly from home prior to the pandemic, so that they can learn what worked well and what can be improved both from the business’ and employees’ perspective, before the vast majority, rather than just a minority of their workforce, switches to some form of hybrid working, at least initially until the pandemic is more under control.
It’s possible that the right to work from home could become law in future, under which employers would be required to show that it’s essential for staff to attend the workplace, to prevent them from working flexibly. I think this is unlikely to happen in practice as a large proportion of employers would oppose this strongly during any consultation process with the government, before any such legislation was enacted.
Whilst undoubtedly, most professionals (both male and female) and disabled staff who have been able to work from home during the pandemic have enjoyed the greater flexibility this has afforded them and the ability to better balance their family and home lives with work and they will want to retain some of these freedoms and better work/life balance once the pandemic eases, there are concerns that more men who tend to be in senior positions compared to their female colleagues may choose to return to the workplace on a more regular basis than women, who are predominantly in more junior positions and earn less than men and bear the greater burden of child care and domestic responsibilities.
Middle aged women who have valuable experience and may be mentors to more junior staff may also opt to work predominantly from home if they are peri-menopausal or going through the menopause, as they may find it easier to manage their symptoms (If they are experiencing any) from home.
Risks may then arise in which women predominantly working from home may become ‘out of sight, out of mind’ and may be passed over for complex high profile projects and work, which will raise their profile internally and externally and enable them to be promoted, or for more senior, mature women enable them to utilise their significant skills and experience, which might otherwise go to waste. They could also risk missing natural networking opportunities that arise through informal chats with the right people at the right time in the office (‘watercooler chats’) and this may adversely impact their pay and bonus potential, as well as promotion opportunities. This may increase the gender pay gap further and could give rise to sex discrimination claims, which will be costly and expensive for employers to defend at a time when they are focusing on trying to get their business back on track as lockdown restrictions ease further.
Mentoring could take place on a hybrid basis with the mentee in the office and the mentor at home, but greater efforts will need to be made to create a trusting relationship between the mentor and mentee, if the mentoring cannot take place on a day when both the mentor and mentee are physically in the office. Mentoring relationships, at least in their early stages, tend to work better face to face when a rapport is being built between the parties. Mentees should be encouraged to reach out to their mentors at any time if an incident arises which they wish to discuss with their mentor, even if their mentor is working from home that day. Mentors should regularly check in with their mentees whether one or both parties are in or out of the office.
Hybrid working may inadvertently give rise to more opportunities for sexual harassment to occur in the office, if there is a predominance of senior males present in the office and more junior females or LGBTQ+ staff who are also at greater risk of sexual harassment, who must be present for training and supervision purposes. HR and line managers must be alert to this, as well as the adverse impact it could have on an employer’s culture and the knock on effect of potential employment litigation if an in-office macho environment is inadvertently created, which is not inclusive and welcoming to, or excludes those individuals with protected characteristics. As a result, some employers are considering mandating that all employees adhere to hybrid working arrangements, to avoid a situation where more men than women voluntarily opt to return to the workplace five days a week.
Not all line managers have the same level of emotional intelligence as others and some managers may find training helpful on how to effectively manage a hybrid workforce and how to fairly allocate home working and office working days amongst their teams. HR should bear in mind that some line managers may not want to attend the office in person every day, if their team members have different in office working days, otherwise they may start to resent the fact that hybrid working seems to be available to everyone, apart from themselves. Hybrid working (if that is deemed by the employer to be the best model for a specific employer’s business needs) needs to filter down from the top, if others at more junior levels of the business are to readily adopt the hybrid working model.
Meetings will need to be set up in such a way that team members can join them, either in person or virtually, if it is a working from home day for them, unless employees are required to attend the office on specific days with advance notice, when team meetings or client meetings are going to be held, which we would recommend. Managers will need to learn how to involve all team members and create an environment in which all team members can contribute to meetings and feel bonded and united as a team whether they are joining meetings virtually or physically. It will be much easier said than done in practice, but managers should try to avoid holding pre-meeting discussions with those physically present in the office, otherwise issues may already have been decided when homeworkers join a meeting virtually and this could create ‘in’ and ‘out’ groups which could exclude women and disabled staff from important decision making and may lead to them feeling isolated and excluded and more likely to resign and potentially bring Employment Tribunal claims.
Managers will also need to adapt their working practices so that they do not just allocate urgent work to staff members who are physically present, (known as ‘action bias’) but they will need to be mindful of managing capacity and workload levels of those working from home on certain days and involving them in work projects and business development opportunities equally.
With more remote and home working, employers may resort to greater use of Artificial Intelligence (AI) to monitor their employees’ productivity. There are GDPR issues related to this and such monitoring should only be conducted with an employee’s knowledge and consent. Caution should also be exercised as some productivity scores are based solely on how much you use a certain software provider’s products, for example Microsoft. Employees and workers may use several different providers’ products during the working day, so these productivity scores may not be entirely reliable.
When recruiting potential candidates virtually, employers may wish to consider asking all candidates to use the same virtual background, so that any unconscious bias regarding socio-economic class does not factor into recruitment decisions. This will help to protect employers from successful discrimination claims.
Most employers are reluctant to agree to flexible working requests at this stage, as they will constitute a permanent contractual change if agreed. Flexibility both ways (including on the part of employees) will be key to the success of hybrid/agile working arrangements. Any hybrid working arrangements should be reviewed regularly by the employer and amended as necessary to reflect the changing needs of the business as the pandemic recedes.
Working from home during the pandemic when everyone else was also working from home in the same circumstances and therefore a level playing field existed amongst all employees in the same department or company is very different to how hybrid working in ordinary circumstances once the pandemic recedes will be, when some employees will be in the office on certain days, whilst others will be working from home on those days and this should be borne in mind by both employers and employees alike.
A one size fits all hybrid working model is unlikely to suit everyone equally and different departments and teams in organisations are likely to have different needs, both on a professional/business level and on a personal level. Flexibility may need to become more personalised for specific teams and departments and/or individuals over time, (provided that this has no overall adverse impact on the overarching needs of the business), but I suspect that greater personalisation of flexible working arrangements will be difficult for employers to manage in practice and will be something that they will increasingly need to seek specialist employment advice on.
It is those employers who can provide both flexibility and security, who are willing and able to evaluate the situation and evolve where possible, so that they can learn and adapt to any unintended consequences of hybrid working and who understand that going back to the office does not necessarily mean returning to old working patterns, without also taking on board the benefits of greater flexibility that the pandemic has afforded to both businesses and their staff alike , will be best placed to attract and retain the best talent going forwards.
Author
Michelle Chance, Head of Employment (michelle.chance@rosenblatt-law.co.uk)
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