As working arrangements start to settle down (Omicron variant notwithstanding!), what do employers and employees need to be aware of from a contractual point of view? Every contract of employment in the UK needs to state the “place of employment” – so if an organisation is embracing hybrid working, do those contracts need to change?
What about if an organisation does, or does not want to encourage employees to come into the office – how do both parties stand legally? If they want to reduce office space and take advantage of more people working from home, what are the rights of staff that want to work in the office? And can employers compel staff to come in if they are convinced that’s where they do their best work?
Another minefield that should not be underestimated is where an organisation has employees that have decided to base themselves in another country. This can result in the employer having obligations and responsibilities under the employment / labour laws of that country as well as the home country.
As ever, the best defence is to be aware of the situation and to mitigate any risks, not to assume that whatever you want to do will be fine. Nobody wants to end up in court or a tribunal (and this can happen very quickly in some countries), particularly as there isn’t a huge amount of precedent associated with the new world of work that we’re living in.
AWA Host: Karen Plum
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00:00:01 Karen Plum
Hello everyone. If you're an organization that's embracing hybrid working, what do you need to know about the legal situation relating to your employees? Should you change people contracts of employment, rely on a policy, or should you just wait and see how things turn out? And what happens if you have people working in other countries? Does that increase your risk? Let's find out.
INTRO: Welcome to the Changing the World of Work Podcast where we provide insightful, practical content to untangle and demystify workplace change. I'm Karen Plum, director at Advanced Workplace Associates, where we combine science with nearly 30 years’ experience, helping organizations change the way they work, for the better.
00:00:50 Karen Plum
Welcome to this episode of the podcast where we're looking at the legal aspects of hybrid working, specifically how the terms of our employment are being affected by the changing nature of our working arrangements.
There are implications for our contractual relationships with our employers and I'm interested to know what's changing in terms of what can and can't be insisted upon, as we continue to grapple with the return to the office decisions. Or maybe we don't, given the appearance of the Omicron variant!
But anyway, on with the show. My guest this time is Hannah Crisp, Senior Associate in the employment team with international law firm Allen & Overy.
Hello Hannah, welcome to the podcast.
00:01:30 Hannah Crisp
Hi Karen, thanks very much.
00:01:31 Karen Plum
It's good to see you. Could you tell us a little bit about what your job entails?
00:01:36 Hannah Crisp
I work with businesses across a variety of sectors, helping them with employment law issues that affect their workforce and their people. Whether that's on day-to-day HR issues, on major projects for change both in the UK and globally, and also just when things go wrong so, assisting them with employment litigation or grievances or problems that come up with their staff.
00:02:01 Karen Plum
So you mentioned the international element, so are you familiar with employment law in other territories, or would you be calling upon the expertise of local people within Allen & Overy?
00:02:13 Hannah Crisp
Yeah, for the most part, it's calling on colleagues. I have little kind of nuggets, I guess, of knowledge from years of working with them, but we're very lucky to have a big team across the globe and we can call on their knowledge to make sure that we're getting the most up-to-date advice in each jurisdiction as and when we need it.
00:02:29 Karen Plum
Right 'cause I imagine it's fearsomely complicated and different in lots of different territories.
00:02:34 Hannah Crisp
It's definitely true, and I think particularly in Europe, where you have the EU angle, but on top of that local derogations and things that to a UK lawyer sometimes sound absolutely bizarre, but I think they probably would say the same about us!
00:02:49 Karen Plum
Well and only if they're being polite! So I mean, I guess things are getting a bit more settled (Omicron notwithstanding) and I'm thinking that perhaps many clients are moving towards clarifying new working arrangements.
I guess we went through a period of uncertainty and nobody wanted to nail things down, but in your experience as an employment lawyer, what sort of things are clients raising with you? What's keeping them awake nights?
00:03:17 Hannah Crisp
Well, I think the first is probably, you know, in this new world of hybrid, working, what's the best way to put hybrid working, however you define that, in place? What are the hoops that we actually need to jump through? I think we're also seeing a lot of businesses who want to try and take a consistent approach across different locations across the world.
And so we're getting questions about whether that can work at all, and if so, what needs to be done? And I think, thirdly, we're seeing a lot of employers think about how to deal with returning to the office, whether that's full time or on a hybrid basis and particularly what to do when employees are reluctant to return and I'm expecting that with Omicron concerns coming out about that, that's going to become something over the next couple of weeks, it becomes even more prevalent.
00:04:05 Karen Plum
Yes indeed. Perhaps we can look at some of those aspects in a bit of detail. How do you respond when clients ask the question - if we want to do this hybrid working thing, how do we do it legally? How do we not get ourselves into trouble? First of all, what do they mean by doing it legally?
00:04:23 Hannah Crisp
I think when employers talk about doing things legally, I think often they're actually thinking about well how do we put it in place in a way that means we can hold employees to it? And I think on the flip side employees, I imagine, are also thinking well, what do I need to do or what do I need to get my employer to do, so that I can hold them to it?
So that sort of thing is coming up is not that surprising, and I think if you go just right back to basics in the UK, it's pretty standard for someone’s contract for employment to have their place of work in it.
You know it's actually it's a legal requirement under the Employment Rights Act, and so for years we've had this world of work where employers and employees have a written agreement that says a particular person will be in a particular office for however many days a week, unless they were already a home worker or had a flexible working arrangement in place - although even then that would probably be in someone’s contract
And so they're looking at it now going well, this is flexible, it's hybrid - we're not really sure what we should be doing, but my place of work still says that I should be in the office from Monday to Friday between the hours of 9 and 5:30. And how do you make that work? So I think when employers are looking at making kind of workforce wide changes to how and where people work, they're often coming to us to ask for assistance in making changes to employees, contracts.
And I think on one view, making a contractual change is sort of the gold standard, it gives everyone certainty as to what the hybrid working arrangement is. An employer can hold their employee to it. The employee can hold the employer to it. But for some employers I think making contractual changes might not only be necessary for what they want to achieve, but it could actually end up being a bit counterproductive.
I mean, I guess the one sort of scenario I'm thinking of is where, let's say a business wants to introduce hybrid working for its staff, but it's not yet completely sure of whether it will work or how it will work, and it wants to be able to change it further down the line and see how things go.
And in those cases of kind of making a formal contractual change right now won't retain the flexibility that they want or they need to be able to adjust hybrid working in the future according to what the business needs. And so then we start to get questions when employers are talking about doing it legally, where its well can we do it in a policy instead? Can we do it and have nothing written down? Is that OK? And the answer to that is sometimes yes.
Having a policy document which sets out guidelines for employees to be able to follow but enables a business to retain some discretion, may be more appropriate and may work perfectly well and achieve what you need to achieve.
If the employer knows what they want to do and they know through having done it in a pandemic what works, then actually having the contract in place does give everyone clarity and certainty and it's not really any different from anything else that you'd put in their contract.
Depending on the size of the workforce, you know the cost in making contractual changes, whether that's through getting legal advice from people like me or just through the sheer manhours of HR having to process that many contracts, can be quite significant. And I think also contractual changes can for some businesses bring a need for consultation.
Sometimes a need for collective consultation and where you have a unionized workforce or an employee works council or some other representative body, that brings additional layers of complexity that some employers just maybe don't want or really need to be dealing with in order to achieve what it is they want to achieve.
00:08:13 Karen Plum
If I, as an employer decide to leave my contracts of employment as they are, and the contract states that your place of work is in the office, but actually I want you to work more time away from the office because I'd quite like to downsize the office space - could I find myself in hot water when I have perhaps an employee or group of employees who actually want to come into the office and I don't want them to and they would say well, but it says in my contract that my place of work is in the office, so I'm entitled to a desk.
Am I going to be getting into hot water there?
00:08:47 Hannah Crisp
Potentially, yes, you could be in that situation because, as you say, an employee's contract if it says their place of work is the office and they're being told, well, we don't really want you to come in.
We've maybe got a policy document or some sort of guidance, even if it's just an email that's gone out that said, actually we want to move to more of a hybrid working arrangement and we're envisaging people will spend 2 days in 3 days out or whatever, and an employee may say but my place of work is the office and not everyone likes working from home. Some people have found it very isolating, they miss the team interaction.
And so in that world, yes, I think you would probably be better off looking at where some sort of contractual change is the right thing to do. If nothing else, even if it's just a contractual change to your place of work clause, we have a policy on flexible working and staff will ordinarily be expected to spend some time working from home and then the detail of it is retained in the policy to try and keep some discretion over what it looks like.
But that definitely presents challenges, but it can also present challenges then in making the contractual change, because the likelihood is those employees are going to be reluctant to want to agree it. And that makes for quite a difficult consultation process.
00:10:08 Karen Plum
Yes, indeed it starts to get quite difficult then, but I guess if we look at it the other way round, if the employer wants people to come into the office, but they don't want to come in - can the employer compel them to come in? I mean, I've heard this discussed on the radio, on the news - my employer wants me to come in, I don't want to, can they force me? Can they?
00:10:30 Hannah Crisp
You're right, this is a really tricky area and it throws up a lot of different issues. I think what I tend to see in these sorts of situations is businesses saying, well, I want people to come back. Whether that's every day or some days and the employees saying but I've been working from home for 18 months why can't I continue to do that?
Because it obviously works and from a pure human logic perspective you can see the sense in that argument, I guess. I think the starting point from a legal perspective is the contract. So if an employee’s contract says that their place of work is the employer’s office, then that's their place of work. And whilst contracts can change through what legally we refer to as ‘custom & practice’, so if you do something for so long that it just becomes part of your contract. You know the pandemic was and is obviously an extraordinary set of circumstances and I think it would be very difficult for any employee to say they now have a contractual right to work from home because they've been forced to do it because the government told them to.
What employees do have is a legal right, once they've been employed for 26 weeks to make a flexible working request and that can include a request to work from home. So I think we are starting to see a little bit more of that, but the right to make a flexible working request is something that's been in place in the UK for a long time, but was previously really focused on working parents, whereas now any employee has the right to make that request for any reason once they've got their 26-week service.
And I think some employers perhaps allow that even earlier, and if an employee does make a flexible working request, then the employer has an obligation to deal with that request in a reasonable manner. If the request is refused, it also has to be refused on one of a number of prescribed grounds, and that includes things like detrimental impact on quality or performance, and in some businesses, there's a school of thought that says, well, a lack of face-to-face interaction can impact things like team building or creativity and that can be to the detriment of performance.
But I think even if an employee isn't making a flexible working request, it's really important to consider why they're refusing to come in. So I mean an employee who doesn't comply with a reasonable instruction to come into work when that's their contractual place of work may well be in breach of contract, and there've been employment tribunal cases on this in the last kind of year or so in relation to employees who've refused to come into work or have refused to return to the office.
Because they've perhaps had a family member at home who's had cancer, and they've been worried about getting on public transport and potentially catching COVID and taking that home. There's been a bit of a mixture of outcomes in how those cases have been decided.
Sometimes the tribunals have said, well, actually in the particular circumstances, we don't think the employee was acting reasonably and in other cases they've said yes we think that was completely reasonable and the employers shouldn't have dismissed them.
I think you might also have an employee who's not vaccinated, say for health reasons or because of beliefs that they have.
00:13:35 Karen Plum
Are we seeing many organisations in the UK as far as you're aware that are actually insisting on vaccination before people can attend the office?
00:13:45 Hannah Crisp
In terms of what I'm seeing in my day-to-day practice, most of my clients aren't doing that and they are looking more at things like it might be something on the gate that says you know you promise that you're not coming into the office if you've got COVID symptoms, and by scanning your pass you are effectively telling us that you're absolutely fine, and I've also seen examples of employers saying well, in order to do particular things you need to show us that you've got a vaccine status, but they're not retaining the data.
There's an additional challenge that comes with kind of mandating it, and how you prove it, because then you've got to request information and that’s sensitive health data and that brings in all sorts of additional layers of complications in relation to GDPR and data protection.
00:14:35 Karen Plum
Just going back to how you're advising clients in terms of doing hybrid does your advice differ depending on where the employees are based? So if they have employees who want to relocate to another country and work virtually, which country’s employment law applies if I want to go and work, say, in Spain.
00:14:59 Hannah Crisp
The answer to your question is yes, we absolutely get asked that and which employment law applies will depend on the circumstances and possible it could be two countries. It could be both the UK and Spain depending on the circumstances.
I mean I know one of the challenges you've discussed on this podcast previously is the tax implications of employees relocating. And that's always forefront in my mind when I'm advising on these sorts of issues.
But from an employment law perspective there are additional challenges that can arise if an employee is working from another country for a UK business, but they could also just under the laws of the other country, be deemed to come within the employment or labor laws of that country too. And I think just because we're in the UK can sometimes be easy to fall into the trap of thinking well, the employee’s just a UK employee. They're working for UK business under the UK contract. They just happen to be working somewhere else. But what's the difference between working from home in London and working from home in Spain?
But actually the laws in different countries can in the same way that there's the tax risk if someone’s on shored, an employee can effectively be on shored and come within the confines of their employment laws, or their employment code as I think is the case in a lot of Europe.
And that can be really difficult because some locations, particularly in Europe, have laws that are much more favorable for employees and to employers in the UK can just sound a little bit odd because we're not used to them.
We're a bit more employer friendly, I think in the UK than they are in Europe so I know in Portugal for example, they very recently passed a new regulation that necessitates home working arrangements are set out in a written contract which just isn't the case in the UK.
There's not a requirement to do that. There are similar requirements I think in Belgium, but I understand from speaking to colleagues in France that there's no legal requirement to formalize home working arrangements at all.
But if they are put in place in a formal document, then there are specific requirements that need to be complied with and the danger you run with all of these sorts of things is, if you're not aware that that employee might have rights under the law of the country in which they're working, then you could just fall foul of all sorts of laws that you didn't even know that you had to be complying with.
00:17:23 Karen Plum
I was going to say how would the authorities find out, but it's not the authorities, is it? It's the employee saying, well, if there's something that they're being asked to do by their employer in the UK and they say, well, I don't have to do that because I'm in XYZ country and that's not a requirement here. What sort of situations could arise?
00:17:43 Hannah Crisp
It depends very much on the country, but certainly as a UK lawyer, the idea of one of the employees of one of my businesses running off to the authorities in another European country, and what then comes out of that is to me quite scary, because I don't actually really know what that looks like.
And if I don't know what it looks like as an employer, I imagine a lot of my clients and a lot of businesses don't know what that looks like either. I've had occasional brushes with what the French process looks like and it's extraordinarily different.
You can make a complaint and suddenly, find yourself in kind of a civil process, it's very different from in the UK and in every country that will be slightly different. There are some countries where there are labor authorities that you can report to, and they might have the ability to issue fines or to do investigations.
There are some countries where you might end up very quickly in a court process, but ultimately I think if you've got an employee who is working from another country and I imagine a lot of the time that will be, maybe because that's where they're from, or because they've got family who are from there, and therefore they may have some existing awareness of what employment laws or what their rights are in that country, And potentially they could be one step ahead of the employer, because if the employer has not really thought about it, they may just get presented by the employee with, well what about this?
00:19:14 Karen Plum
Yes, probably a bit of a naughty question, but is it possible to agree which employment law prevails with the employee?
00:19:24 Hannah Crisp
It's definitely not as a matter of UK law. I'm not aware that it is in other countries. I think, particularly again in Europe, and I think also in the US and elsewhere in the world. I think it's just, the law is the law and it bites when it says.
00:19:38 Karen Plum
You can't get people to sign their rights away, no and rightly so.
00:19:42 Hannah Crisp
You may be able to find the odd country that allows that, but I think for the most part, uh, no. The laws are kind of designed to apply when those who write them say they should apply.
00:19:53 Karen Plum
Indeed. So what happens if an employer discovers someone’s moved to another country without telling them? What impact does that have on their employment relationship, their contract of employment? How would you advise a client if they discovered this situation had come about?
00:20:10 Hannah Crisp
Well, I think it would depend on the particular circumstances and the risks involved with the particular country. Ultimately also what the employer wants to do. If the onshoring risk is too great and that may not just be from an employment and statutory rights perspective but potentially also sometimes just from the tax perspective that you've discussed previously.
This sort of scenario, it may enable an employer to say, quite reasonably to the employee, you either return to the UK, or we're going to terminate your contract. But if you're in a world where there's no or minimal legal risk from employment law, or you know from tax or Social Security or immigration or from any legal perspective, the considerations may then start to become similar to those that we discussed earlier in terms of the employee in the UK who just doesn't want to come. into the office.
And actually, interestingly, one of the Employment Tribunal cases that came out earlier this year, I think was heard back end of last year, involved an individual who was in Italy during the pandemic and wouldn't return to the UK to come back to work.
And so then I think a lot of the questions that I would be asking a business that came to me for advice in that situation is, become a bit more commercial than legal in terms of what do they want to do and why. Why does this person need to be back right now? Why can't they do their role where they are?
Why can't they do it remotely? What are the risk factors in terms of discrimination or health and safety or whatever it is. And subject to getting comfortable that you're not creating some sort of big employment law risk or enabling them to be there and obtaining a lot of statutory employment rights in their local country that perhaps you don't want them to have or from a business risk perspective, is just not acceptable.
It's not, then, that different really, because it's just a question of someone working remotely rather than physically being in the office.
00:22:12 Karen Plum
So another thing I wanted to ask you about was the duty of care that employers have to their people when they're working from home. I'm fairly sure that that was a subject that was absolutely neglected in the early parts of the pandemic, because what other choice did we have?
But what things do they need to be mindful of now as the thing as you say, settles down and they're embracing a more formal arrangement of hybrid working? Presumably they can't afford to not take care of their duty of care going forward.
00:22:46 Hannah Crisp
There's a long history of the courts in the UK looking at issues like stress for employees and working arrangements and that duty of care comes not just from the Health and Safety at Work acts, but from some of these kind of common law decisions around what that duty is and what it is and fundamentally what it comes down to is in the UK, an employer is responsible for an employee’s welfare, health and safety, so far as is reasonably practicable.
And that will extend to homeworkers, mobile workers, lone workers, however, you want to describe them. The UK Health and Safety Executive has actually issued guidance on specifically home workers and lone workers and that includes not just looking at things like their equipment and their physical working environment, but dealing with issues like stress and mental health problems that can come through being a bit more isolated and things that could be done in terms of keeping in touch.
One of the things we often get asked in terms of the duty of care is whether it extends to providing equipment to staff. The simple answer to that is, there's no legal requirement as such to provide a screen, a desk, whatever it is. There's nothing written in a law that says you have to do these things if someone’s working from home. But employers might choose to do it, to ensure they're complying with their health and safety obligations, or even IT security concerns can be another reason to do it.
Thinking about things such as compliance with GDPR and data protection legislation, and I think for those who are then overseas and thinking back to this additional challenge of, the employee who's maybe working remotely from another country but doing UK work, if they do get rights under the law of the country in which they're working, there can actually be far more prescriptive and far more onerous requirements in terms of what needs to be done.
I'm aware in Belgium for example, that employees who work from home regularly have a right to receive either equipment from their employer, or to be compensated for using their own devices, which is not something that we have in this country
I think there are obligations in the Netherlands, for example, to create, I think the term they use is an ‘ergonomic workplace’ at home. Which can include not just providing things like a keyboard and a mouse, but can extend to a desk and an office chair.
And there are countries also considering changes to their laws around the right to disconnect, and I think that's been a particular issue with home working in the UK and just across the globe during the pandemic, that when we had nothing else to do because we couldn't go out and we were all just sat at home working, that getting the division between home and work and being able to switch off, when it's very easy to just sort of, say, well, I'll just do another 10 minutes sitting at my desk 'cause I've just got to pop downstairs to make dinner, that creates challenges from a duty of care perspective.
In the UK we are definitely not in a position of employers being under any obligation to be saying to employees, you must stop working at a particular time and go home. The way it's kind of set up in the UK is built a bit more on trust in terms of employees knowing what they need to do to get their job done and knowing to speak up if they're feeling overwhelmed, or they're feeling like they can't cope with something.
But there's obviously this overlay of the duty of care and employers just needing to keep an eye on that.
00:26:23 Karen Plum
So, my final question. I'm curious - what's the piece of advice you find yourself giving clients most often?
00:26:30 Hannah Crisp
I think it's actually probably something that's maybe not only applicable to this area of law, but to lots of other employment or issues as well, and I think it's make sure you're clear on why you're doing what it is you want to do, and then make sure you stand behind it.
I think an employer who has spent time thinking about what the business needs and in terms of this kind of aspect, designing a hybrid working arrangement that will not only be able to explain that to staff in a way that's going to be accepted and make the whole process run smoother, but if you know what you're doing and why you're doing it, that business is also just going to be much better placed to defend its decisions if they're ever challenged. And to make sure that it works commercially; it works for your staff.
For the vast majority of businesses, the staff is kind of the key resource, and if you don't have a happy staff, you've not going to do great in business. And so I think sometimes just stripping it back and not necessarily immediately thinking what legally can I do, and sometimes starting from the perspective of what do I want to do and then can I do it, is sometimes just a better way to do it, because then you make sure you're doing things for the right reasons. You can communicate with staff, I think much more effectively.
You can often get staff on board with that thing much more effectively, and you're just able to make sure that it works and it can continue and you can achieve what it is that you want to achieve.
00:28:05 Karen Plum
Well, I think that's a good place to finish. Hannah, thank you so much for spending time with me today, it's been a fascinating romp through the employment, contractual and legal aspects of having people working in this new hybrid world. Thanks for joining me.
00:28:20 Hannah Crisp
00:28:21 Karen Plum
And that's it for this episode. See you next time.
CLOSE: Thank you for listening to this episode of the Changing the World of Work Podcast. Please follow or like the show so you don't miss any of our content. You can find more information on this episode in our show notes, including a link to the AWA website, if you'd like to know more about us. Hope to see you next time. Goodbye.