Ethan Diver: The risks of getting homeworking and hybrid working wrong

For many employees, the Covid-19 pandemic triggered the beginning of long-lasting flexible-working arrangements. Despite some employers reporting increased productivity since implementing large-scale flexible-working arrangements, others have been eager to end or limit their employees’ ability to work from home. However, where employees have been working from home for some time, this can cause legal difficulties, especially where the relevant policies have not been well-drafted or well-monitored.

In particular, where the working-from-home arrangement has been satisfactory, requiring an employee to return to the workplace permanently could amount to a breach of the implied term of mutual trust and confidence. Therefore, any decision to require them to return to the office permanently should be founded on sound business reasoning following open and transparent consultation with them. They should also be provided with reasonable notice of the change, rather than being expected to alter their working arrangements with immediate effect.

Moreover, there is a risk that the working-from-home arrangement may have become an implied term of their employment contract through custom and practice. As such, the risk is much higher where employers have not drafted relevant policies or not expressed those policies to be non-contractual. In contrast, where an employer has made clear that its policy is discretionary and may be revoked at any time, this will help to rebut any argument that the arrangements were ever intended to be permanent. However, it is ultimately a question of degree depending on the nature and duration of the custom or practice, so even arrangements which are expressed to be discretionary may still become implied terms where they subsist for long enough.

The same principle applies to employers wishing to enforce their hybrid-working arrangements. For example, where they have in practice allowed employees to work from home more regularly than their policy permits, those employees may be able to argue that their current working pattern has become an implied term through custom or practice. In this way, employers should ensure that they are accurately monitoring how regularly staff are working from home and actively enforcing their policies where they are being overstretched.

Employers should also remember that it remains open to individual employees to make requests of permanent flexible-working arrangements. Employers may also need to consider whether homeworking or hybrid-working arrangements may amount to a reasonable adjustment where the employee is disabled.

Ethan Diver is a solicitor at Taylor Walton Solicitors