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How to avoid hybrid working headaches and legal claims

Bela Gor, Head of Content and Legal

Research by BDF Partner Microsoft, The Next Great Disruption is Hybrid Work – Are We Ready? has found that:

  • 73% of workers surveyed want flexible remote work options to continue.
  • Remote job postings on LinkedIn increased more than five times during the pandemic.
  • Over 40% of the global workforce is considering leaving their employer this year and 46% are planning to move now that they can work remotely.

This combined with surveys of their own workforce has led some employers to reduce their office space often by as much as 20%. Forty three out of fifty big employers told the BBC in April that they planned to embrace a mix of home and office working with staff encouraged to work from home two or three days a week.

The logistics of such hybrid working can cause employers headaches. How do employees know when they can come into the office and who else will be there when they do? There is no point travelling into an office to sit alone reading emails from colleagues working from home. Booking systems are being developed at speed but employers need to ensure that they are accessible for every employee so disabled employees, using assistive technology for example, get the same access to booking time in the office. Failure to make such systems could lead to claims for disability discrimination.

When space is in short supply employers might also have to navigate needs vs want situations. Some employees have a good set up at home and only want to come into the office from time to time because they miss their colleagues. Others do not have dedicated home offices, live in noisy shared spaces or with young children or they just don’t have access to reliable broadband and so need to come back to the office, perhaps full-time.

Throw into the mix that employers have legal duties towards some people such as disabled colleagues and the future of work becomes something that needs urgent but careful thought. Employers must not assume that disabled employees do not want to come back to the office, either full-time or for a few days a week. Some disabled people will have all the same reasons listed above for being unable to work comfortably from home. Others might need to come into the office for the sake of their mental health. Assumptions about what disabled people do and do not want can, again, lead to disability discrimination claims.

If non-disabled employees are being encouraged to work in the office two or three days a week this should also apply to disabled employees. However, this might mean that employees who have specialist equipment, like assistive technology or adapted chairs and desks will need these adjustments both in the office and at home. Whether or not this is reasonable will depend on the circumstances. It isn’t clear if Access to Work has kept up with this new development so cost could be a factor.

Employers and employees will also need to negotiate on what happens to adapted desks and chairs when the disabled employee isn’t in the office – can other employees use this equipment? If disabled employees who need specialist equipment are prioritised for office work as a reasonable adjustment, perhaps because it isn’t possible to have the equipment in two places, then this might mean that people who can work from home will have to continue doing so because there isn’t room in the office for everyone. In this case, the needs of a disabled person who needs to work in the office as a reasonable adjustment may well trump the needs of someone without those legal rights, but that doesn’t mean that employees might not be disgruntled by the decision.

Some disabled employees might also feel a pressure to come into the office if a desk and equipment has been reserved for them even if they would like to take up the option of working from home a couple of days a week. Talking through all these issues with all your employees now will help reduce the risk of problems (and possible legal claims) down the line.

We have more guidance on welcoming disabled colleagues back to the office in our COVID-19 Toolkit. We are also expecting the Government to issue guidance on hybrid working later in May. This is a subject that is not going to go away anytime soon even if, as we all hope, the virus will.

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