According to the Chartered Institute of Personnel and Development, three quarters of employers in the UK now offer hybrid working. But what are the risks?
For this episode we're joined by Paula Eckton, partner at award winning law firm Steele Raymond, to discuss not only some of the legal aspects, but the broader business risks and opportunities linked with offering a mix of workplace and home-based working.
If you would prefer to read rather than listen to this episode, you can find the transcript below.
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TRANSCRIPT
Johnny Thomson 00:02
According to the Chartered Institute of Personnel and Development, three quarters of employers in the UK now offer hybrid working, but what are the risks? Hello, everyone, and welcome to the RiskACUMEN podcast, which offers thoughtful insight around risk management. So, more and more employees have been shifting to a hybrid working model recently. However, such a change is not without its risks. Today, I'm delighted to be joined by Paula Eckton, partner at award winning law firm Steel Raymond, to discuss not only some of the legal aspects, but the broader business risks linked with offering a mix of workplace and home-based working. Hi, Paula, how are you?
Paula Eckton 00:44
Hi, there, I'm very well thank you. How are you?
Johnny Thomson 00:47
I'm good, good, good thank you. And before we get on to talking about hybrid working Paula, tell me a little bit about you, your background and your firm Steel Raymond of course.
Paula Eckton 00:59
Okay, no problem. Well, I am a solicitor and a partner, as you say in Steel Raymond, and we are based on the sunny and currently very hot south coast. And I head up the commercial team there. So my team specialises in helping clients to protect their business interests by helping them to manage a wide range of risks. So for me, sort of on a day to day basis, this ranges from implementing and negotiating their contractual arrangements for the supply of their products and their services. So that might be their distribution arrangements, their terms of business SLAs, for example, ecommerce, to regulatory works such as data protection. So I've been doing it for well, over 20 years, actually now, I was adding that up earlier. And over that time, I've probably come to learn actually that what clients really are after when it comes to legal services, such as ours, is that in addition to the kind of legal advice, what they really want is the commercial and the pragmatic advice that goes with it. So I tend to find, I get to know my clients, I know their personnel, their kind of appetite for risk, I know their business, and then I endeavour to kind of act more as a trusted adviser to them, rather than just give them the straight legal kind of answers really.
Johnny Thomson 02:21
Yeah, so you really enjoy that side of it. You enjoy, basically helping these these businesses yeah?
Paula Eckton 02:27
Absolutely, absolutely. And it's great to get it, you need to know the business and the people really, you know in order to enable to give that really sort of that extra advice really, you know, I say anybody, you can of course give the strict legal answer, but what my clients want they say, that's great Paula, but what do you think? And that's what I endeavour to do.
Johnny Thomson 02:48
Brilliant. Excellent. Okay. So onto the main topic, and just in case anyone isn't familiar with hybrid work Paula, what exactly is it and why has there been such a rapid move towards this model among businesses recently?
Paula Eckton 03:05
Yep. So hybrid working. So it's a flexible model, so a flexible form of working where essentially employees work partly in the office or the physical workspace that they were otherwise in, and then partly remotely. So that might be at home, or it might be some other sort of public space. And pre-COVID, there was a bit of a growing trend towards working in a more flexible way, but even then only I think about 30% of the population had still never actually worked from home. And of course, when COVID came along, employers were then forced into a work from home model, or at least those businesses that obviously were physically able to do that. And now we're coming out of the kind of COVID sort of environment employers are now grappling with okay, how do we structure our working environment going forward? Do we go back to what we had before? Or, or what do we do and many employers, certainly a number of my clients have reported experiencing quite a lot of resistance from employees who don't want to go to back to the office full stop, not even on a kind of hybrid basis. But also you've got the government taskforce and they're recommending that flexible working should be the default position for all workers post pandemic. So that's why it's kind of gaining at the moment, people are now we know we're out of it, it's like right, what do we do now?
Johnny Thomson 04:27
Yeah. And I think it's important that even though we're going to talk about risks here, we need to be clear from the outset that neither of us are against hybrid work.
Paula Eckton 04:36
Not at all. I mean, I'm hybrid working currently as we speak.
Johnny Thomson 04:40
Yeah. So I mean, it's probably important we cover some of the benefits as well before we move on to the potential drawbacks, and as you said, we all discovered a different way of working through the pandemic and a lot of us, not just employees, but employers quite liked it as well yeah?
Paula Eckton 05:01
Absolutely. I mean and it's been quite widely reported I think that, you know, the sort of increased productivity that has arisen as a result. And I think actually many employers, I think we're quite, they wouldn't have chosen, of course to do this. And we're probably before a little bit resistant to people working from home for various reasons. But actually, what they've discovered is that, you know, it has increased productivity. You have sort of less distractions from being in an office and we all know what it's like, people come and talk to you, and you make a cup of coffee, and you have a chat about the weather and how, how hot it is like currently. And so that's not there. So, and I've experienced it myself, you know, I've got up and thought, okay, I don't need to get physically go to the office, I don't need to travel to the office, the travel time that's associated with that and the cost and expense. So I can actually just sit here and crack on and get some work done, which is great. And I think a lot of people have been really pleasantly surprised with how they've actually really enjoyed that.
Johnny Thomson 06:01
And some broader environmental benefits as well from that, of course, as you say, with less travel and so on?
Paula Eckton 06:07
Completely. Yeah, absolutely. Absolutely. And I think, from the employees perspective, genuinely happy.I certainly, that's the experience that I've had and a lot of clients have said this to me that, you know, their employees are really relishing the fact that they do have more flexibility. So instead of spending all this time travelling, they still get their work done, but they can now fit their lives around their family, they can take their dogs for a walk at lunchtime, all this kind of thing, which before just wasn't possible. And that's led to increased job satisfaction and in turn, improved wellbeing. And then reductions in staff turnover, because people are generally happier as a result.
Johnny Thomson 06:47
Now, of course, there are some legal aspects around all of this. And I guess, I guess a key question that will arise quite often is whether or not an employer is now in any way obliged to offer hybrid working?
Paula Eckton 07:01
So no, you're not obliged to offer hybrid working. but...
Johnny Thomson 07:10
I knew there was a but...
Paula Eckton 07:11
There's always a but, there's a legal thing, there's always a but. So no, so generally employees, they don't have a legal right to work from home. But, you have to if you are an employer, consider requests if they are being made under the flexible working legislation. So there's some criteria for that, but in short that's when people ask, you know, can I do my five days in four, or can I change my days around, can I change my hours. So people who qualify in order to ask for flexible working, then if they are saying please can I work from home, you do have a duty as an employer to consider that request. Similarly, if there's a discrimination claim, that's possible, you have to sort of justify any refusal. So let's say you have an employee who has a disability, which may make travelling to the workplace difficult, then you are under an obligation to consider their request, and you'd need to obviously be able to justify a refusal, should you, you know, should you not want to do that.
Johnny Thomson 08:08
Yeah. Have the goalposts kind of shifted as well as a consequence of this becoming, you know, a trend and become far more common place, that those requests would have to be considered more so than they were previously?
Paula Eckton 08:20
I think that's probably right. I mean, at the moment, my experience is, there hasn't been that much that's actually sort of coming through in terms of the kind of case law, we're just a little bit too behind at the moment. I think, at the moment, people are just feeling their way and I think most businesses are kind of like, okay, let's just, let's just gauge the appetite, let's just see, some people are starting to come back in some people aren't. So, I think that will kind of remain to be seen, but I think as an employer, if you can see the benefits of it, then it's probably likely that you're not going to have lots and lots of requests that you're necessarily having to really think about and refuse or not, depending on what it is. You know, you might be looking to actually change your model entirely anyway to now suit your business. Because many businesses, of course, have changed in the way that they work over the last couple of years. Changed the way they provide their services to a more online model, etc, you know, in order to have survived COVID anyway. So it might be that some employers wouldn't in any event, want everybody to come back to what it was before.
Johnny Thomson 09:21
So another key question and kind of the reverse of what I mentioned before, can an employee be made to work from home?
Paula Eckton 09:31
Made to work from home? Right, well if there was a clear requirement at the outset of their employment, then yes, because that was already sort of part and parcel of their terms of employment when they joined, that's not a problem. But if an employer wants to later impose it and say, right, we do want you to work from home, that will be a variation to their employment contract. So you would need their consent in order to do that. Obviously, if you don't have their consent, then you're at risk of breach of contracts, you could potentially look to kind of dismiss and re engage people on new terms, but that's quite a high risk strategy. I would always say take specific employment advice if we're going to do that, because, you know, you're very likely to have some kind of unfair dismissal claim if you do that. But there may be genuine business reasons why, as I say, you might have to totally change the way your business operates, and you might not have an office anymore. So there's quite a lot, yeah there's a lot of considerations there. I think what you would always do, as I have to probably say that as a lawyer don't I, is that you would definitely want to check everything first before you as part of deciding how it is that you're or what it is that you're intending to do.
Johnny Thomson 10:40
It sounds like the whole employment contract thing must have been complicated in many ways by all this, because presumably you've got the potential for new starters being taken on on a hybrid working contract, whereas you've then got your existing employees who are on different terms. How is all of that kind of working?
Paula Eckton 11:03
Yes, you're quite right. It's, it is tricky, there's no two ways about it. So, if you're looking to implement a hybrid working, obviously, you've got as you say, you've got existing employees. You need to check all of their, firstly all of their contracts. You know, get appropriate consents where needed. A lot of them have probably going to have contractual location clauses saying you have to work, you know, at this office or within a radius, etc. You've then got your policies and procedures that you might need to look at because you need to be able to work those in the context of how does that apply to somebody who's working from home. For example, the grievance policy might not be the same, because their line managers may now have changed. If somebody's working at home, you know, you can't just physically go to the, go and make a physical complaint, that kind of thing. So you need to look at all of that. You need your own hybrid working policy, of course, which then sets everything out. And the point that you alluded to, yeah, I mean, just that there are potential discrimination issues you may have. I know, a home worker, their package, you have to be careful that it's no less favourable than perhaps a comparable employee who is working in the office. Maybe people in the office have extra benefits, because there might be a subsidised cafe, gymnasium, things like that. Does the home worker? How do they use it? You know, can they use it? Do they need to be compensated because they can't use it? Yeah so there is a lot involved in terms of just from the straight employment law perspective that would need to be considered.
Johnny Thomson 12:31
So it's all about clarity, really, isn't it? It's about getting those formal arrangements and agreements in place?
Paula Eckton 12:38
Absolutely, yeah, absolutely. And, you know, the people at organisations like ACAS they've actually been really useful. They've published some guides on hybrid working to help businesses consider if it's appropriate, or to how you would introduce it into your business. They've got various working from home guides, and various useful checklists as well. So so that's probably a really good place to start if an employer is considering having a look. And obviously, they've got free resources on there for people to look at.
Johnny Thomson 13:07
And those things are really helpful in terms of getting the communication right as well, because that's where real difficulties can emerge if you say the wrong thing.
Paula Eckton 13:17
Absolutely, absolutely. I mean, yeah, I, I'm not an employment lawyer as such, so for me I always go to my employment specialist, I have to say when it's anything like this, so I understand that from the generically of course, but yeah this kind of thing is quite specific. So yeah, you do have to tread very carefully I think when you're making decisions in this regard.
Johnny Thomson 13:39
And obviously as someone who runs a business themselves as well of course Paula, I think you're quite keen to think, and stress things beyond just the legal aspects, aren't you? You know, there's the broader commercial aspects that need to be considered here as well?
Paula Eckton 13:52
Oh, completely, completely. And, I mean, yeah, as a partner and therefore as you say a business owner, on a day to day basis I face the same challenges as all of my clients. So as we say, from navigating COVID to IT and appraisals and other employment issues, and only yesterday I was debating the post COVID dress code. So, you know, I feel like I'm quite well placed to be able to sort of empathise with my clients in terms of how is this all going to work? How it's all going to work in practice.
Johnny Thomson 14:25
And how are you finding hybrid working yourself, you know, kind of what are almost kind of your experiences and your, your tips, almost for a smoother path through this?
Paula Eckton 14:37
Absolutely. I mean, we were, we were very lucky as a firm, we had already sort of outsourced all of our IT into the cloud before COVID. So when COVID hit, we were very lucky in that we were able to pretty seamlessly, you know, within 24 hours, have everybody working at home. So the kind of issues that a lot of people probably had in terms of equipment and just the actual ability to work at home, in terms of your IT facilities, we were very lucky. So we were able to do that. But that's certainly a consideration for people, you know, when you're thinking about doing that in terms of have they got the robustness you've got, you know, are people's internet connections, correct, okay, that kind of thing. Data security, for example, if people are working from home, you know, have they literally got piles of physical papers on their on their desk with confidential client information? Or are they fortunate in that everything is literally online and they've got a very, very robust and secure pass through to their IT systems. So that's, yeah, that was kind of a consideration and actually for us, we were very lucky in that respect, we had all that covered. So one thing we didn't have to kind of worry about, I suppose. But the actual feedback that we had, you know, other than the initial kind of getting used to it for a couple of weeks, people really did start to enjoy it. As I say they, you know, the more flexibility, the amount of people that got family and friends that they could then see sort of after work, whereas before they couldn't, because of the travelling that they may have to do. It made a massive difference. And then, for us, we were fortunate enough to still be recruiting and being able to, I think, recruit and be able to offer people a hybrid working model, makes an absolutely massive difference because you've got such a wider geographical sort of pool of talent you can tap into rather than the traditional, well, if you're sort of more than I didn't know, so many miles from the office, people are less likely to want to travel to you on a daily basis. So, you know, it makes you a more attractive employer and as I say, you've got more a bigger pool to potentially tap into. And actually one of the things we've noticed, not only for us, but for our clients as well, that now candidates are coming to them and basically saying, we expect to have that option. Because if we don't, we're not as interested, perhaps as other employers who might. So you're almost sort of potentially pushing yourself out of the market or maybe missing out on some really good people, if you're not kind of moving with the time, so to speak. And, you know, I think it improves people's IT skills no end because they, you know, we had to, you know. The amount of people who'd never use Zoom, Teams, that kind of thing and then of course, now everybody's using it.
Johnny Thomson 17:23
We can all find the mute button now, yeah?
Paula Eckton 17:26
Well I think it probably took some time, but we all we all got, you know, we all got there in the end. And that kind of newer form of collaboration, you know, has been, I think has been a great thing. You know, you're more able to just very quickly, if you need a decision, you need five people in the room, before it may have taken a bit longer to kind of organise that now you can go, let's just quickly jump on a call and we've kind of done it. So that I think, trying to assemble people in a in a place together has been really really useful. And of course, the reduced overhead costs, you know, if you're not necessarily having everybody in the office all of the time, you may be able to look at I dont know reducing office space. I know a number of banks that we've dealt with before, I mean, they've closed their office entirely, not even intending to come, you know, to sort of come back to the office, but others are kind of reducing their space, or perhaps not having as many floors as they had before. And that kind of thing. Well, in order to make it work, or people are kind of hot desking, whereas they weren't before. So that's, you know, that been a really, you know, a big benefit. A number of my clients have said that they've been actively actively looking to do that.
Johnny Thomson 18:36
So kind of bringing all of this together Paula, it sounds to me like, your key message here is to accept that the world has changed and there is a need to move on here. And as a result of that, it's a case of getting those checks and those balances in and dealing with things properly rather than just burying your head in the sand and pretending that this thing might go away one day.
Paula Eckton 19:00
Yeah, oh, no, no, absolutely, absolutely. But I mean, it's probably useful just to touch on the drawbacks, because although I've been very, I personally am very for that kind of hybrid working model, because we've had a brilliant experience with it ourselves. And, and that's been great. But you do have to be mindful that there are some drawbacks. So you've got the flipside of the kind of wellbeing and people being flexible, and people being happy with the kind of work life balance, but you may have some employees who actually have found the whole experience quite lonely, maybe perhaps those who, maybe they live alone, for example. And so they're literally all day every day on on their own. And they might find that quite alienating, and, you know, they might miss the workplace facility. So what's a benefit in terms of perhaps not being interrupted by people at the tea point, potentially is the other way as well and that, actually people do actually really value that social interaction as well. So I think we have to just be, just be mindful of that. And I think, especially if you've got people in their in their homes, you know, sometimes if you've got reduced living space, because of course you've now taken over one of your rooms for you know, a homeworking thing, you just have to be careful that your work and home doesn't end up merging into one. So, and again, for me, that's why the kind of hybrid model I've found quite good, because it's great when you want to concentrate and you can get things done for all those benefits that I said before, but equally, being able to catch up with people in person in the office does have massive benefits. You know, you're bouncing ideas off each other, you know, you might just want to pop around the corner and just say to somebody, can I just run this by you, for example. If you're at home, you think I'll just ring them, I'll just see if they're free, I'll just see if I can Teams them. So on that side of it, it's you maybe perhaps lose sight some of the sort of dynamic and the culture. So yep, so I can so definitely you can see, you can kind of see both ways. And I think, particularly for something like learning and training and development, especially maybe for more junior employees, it's really important that we still have that kind of sort of day to day contact with them. I mean, certainly when I learned many years ago as a trainee, you know you learned so much from basically being sat to the person next to you listening to them speaking to clients on the phone, you know, popping into the meetings with them, seeing how how they operated and how it works. And I think for many trainees, obviously having a kind of two year period in almost isolation in their, in their rooms, they have missed out on that. And I think that is a you know, I think that's a shame. So I think we have to be mindful that there are these other things as well, that we do have to keep on top of and management and oversight, it all, kind of it all plays a part in that really.
Johnny Thomson 21:54
Yeah, and I very much like the word mindful that you used there, because it's a great way of managing risk when it comes to people in the workplace. Recognising everybody's not the same. And people will respond to change in different ways.
Paula Eckton 22:08
Yeah, absolutely. And it's funny, because from my own experience, certain people who you think would have absolutely embraced the change, maybe didn't get on quite as well as other people who you thought would really struggle who suddenly said, oh I'm absolutely loving this. So you really can't tell either until it actually happens, how people can react to different things. So, but as you say, I think bringing it all together, in summary, it is here, it's here to stay, I'm pretty sure about that. And I think depending on your business model, of course, and the needs of your clients, because if you need to, you know the nature of your business, your shop or whatever, that's obviously slightly different. But, you know, depending on the needs of your clients, if you're able to operate your business in a way that can kind of encompasses kind of this hybrid way of working, I think, you know for all the potential drawbacks you can, there is a positive and I think you could, you could quite easily kind of deal with all of them together and have a, you know, a really sort of highly motivated, happy workforce, which, you know, is only it's only going to benefit you as the business.
Johnny Thomson 23:19
Fantastic. Thanks very much, Paula.
Paula Eckton 23:23
No problem. Sorry, I feel like I've I've sort of thrown a lot of information in one go at you there.
Johnny Thomson 23:28
No, but that's great. It's wonderful to have your thoughts and also your your insight. You know, there's a lot of really useful information and balanced information there as well, of course, which is, which is really important. Nice to know, you haven't just come on as a solicitor and told us all precisely what we need to follow, or we're in trouble.
Paula Eckton 23:48
No, no. That's, that's, I suppose that's what I was trying to get out at the beginning, really in that clients don't want that, particularly you know. They want to know that you're there to support them, you understand because you run a business yourself so you know, you can empathise with them in terms of what they're going through. You've experienced it. And you can help, as you say, give some sort of useful insight rather than just perhaps, you know, reeling off what the Employment Rights Act may say about things.
Johnny Thomson 24:17
No, no, it's been been really helpful. Perhaps you'd like to come back on, you know, another time and discuss another topic in a similar vein.
Paula Eckton 24:24
Of course, more than happy to.
Johnny Thomson 24:26
Yeah, no that'd be great. Well, thanks again. And I'm looking forward to the next time in that case.
Paula Eckton 24:34
You're very welcome. Nice to speak to you.
Johnny Thomson 24:35
You too Paula. Thank you very much. And that's all for this episode of the RiskACUMEN podcast. If you have any questions or comments around a topic we've been discussing today or any of our other risk related content, please head to our LinkedIn page. You can find a link at riskacumen.co.uk Thanks again Paula, and to everyone else for listening in and until the next time, goodbye for now.
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