A survey revealed that housing associations’ employees would like to work from home more often. Katherine Sinclair of Anthony Collins explains what should be considered with a hybrid working policy
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As the economy begins to open back up following the coronavirus lockdown, social landlords are having to grapple with the complexities of bringing their employees back to work after more than a year of them working from home.
A survey of 795 housing association employees in September 2020 by Trent & Dove Housing showed that nearly 80% were satisfied with working from home, while 79.5% said they would like to work from home more often – suggesting a shift in attitude by employees around the workplace.
The question for employers now is how best they can bridge the gap between home and office-based working, with hybrid working being considered as a possible solution. Katherine Sinclair, a senior associate at Anthony Collins, discusses what social landlords need to consider before putting one in place.
Now that some organisations are beginning to move away from homeworking, do you think housing associations should offer a hybrid working policy?
I would argue, yes. Not least because it increases productivity and engagement in employees and potentially lowers real estate and office premises costs, but it also helps attract and retain talent.
The starting point of advising housing association employers on creating a policy is that thought needs to be given to their overall approach to homeworking and hybrid working. For example, some employees may be content with a flexible arrangement, whereas others may prefer a formal contractual change to protect their agreed working arrangement.
I would advocate it is of paramount importance that housing association employers retain a degree of flexibility as they go forward to service customer demand. Consultation is key here if you want to take your employees with you on a journey, and a hybrid working policy is a really great way to communicate guidance and preserve flexibility.
We recommend that continued hybrid working is always subject to compliance with a robust hybrid working policy that you put in place. This sets out expectations, duties and the right to terminate in limited circumstances, such as performance or disciplinary issues or, worse, customer service being compromised.
Do housing associations need to make changes to terms and conditions of employment, and what do employers need to consider?
A change from workplace-based working to remote work, either from home or as part of a hybrid working arrangement, may mean a change to the conditions of employment, particularly to the contractual provisions on the place of work, depending on what proportion of time they spend away from the workplace.
Good practice would be for associations to review their existing contracts of employment and, in particular, any mobility clause to ensure that they’ve got necessary flexibility to amend an employee’s place of work from the office to a mixture of office and remote work.
If terms and conditions need to be changed, then housing associations need to think about whether there’s anything in the contract giving them the right to sidestep the need for obtaining an agreement. For example, you may need an amendment if the landlord or the employee wants to set a specific date on which the employee is required to attend the office, rather than a minimum requirement of office attendance. But this could be set out in your hybrid working policy, which would sidestep the need to make a contractual change.
Clearly, if you’re going to make some major changes, you’ll need employees’ consent to any formal changes to the terms and conditions.
Katherine Sinclair is a senior associate in the employment and pensions team at legal firm Anthony Collins. She advises on the full spectrum of contentious and non-contentious employment law.
She specialises in advice to registered providers of social housing, education and charities, and leads the team’s work in social housing.
Could employers decide to withdraw hybrid working en masse at any time and would there be implications?
In theory, yes. But landlords would need to address any concerns employees have around the new arrangements at the outset, including whether or not to include a provision that they would keep hybrid working under review and that it could be brought to an end if needed.
However, I would seriously advise against this because of the risk of constructive dismissal claims and/or indirect discrimination claims based on if employees had been working on a hybrid basis or remotely with success for the past six months or longer, a decision to recall hybrid working is likely to be considered unreasonable unless there was a significant reason.
Based on that, we advise including limited circumstances where the right might be withdrawn, such as if customer demand is not being met or, importantly, if there are performance issues.
From a legal perspective, what challenges and opportunities does hybrid working present for recruitment and retention?
In my view, the recruitment pool is now potentially much wider, with opportunities for associations in geographical locations that perhaps are historically less diverse to consider recruiting and attracting talented employees from other geographical locations.
This could enable landlords to put into practice the National Housing Federation’s Code of Governance, which was brought in during 2020 and introduced a new clear emphasis on equality, diversity and inclusion for housing associations’ activities and composition. Each organisation is required to have policies and statements that meaningfully demonstrate commitment and set out priorities and objectives to achieve this.
Retention could become a big issue, though, because staff could potentially work anywhere in the country. So associations should think about measures that need to be in place to retain staff, such as flexibility or benefits.
Landlords also need to consider salaries. Employees based in the regions could potentially work for a London company with a London-weighted salary, so it’s worth looking at what they can do to compete with that.
Conversely, employers need to be careful they do not find themselves saying, “as part of our hybrid work policy, we don’t need to pay London wages any more”, because they could face constructive dismissal claims.
Looking at some of the considerations for when employees are in the office, can associations enforce mandatory mask-wearing and compulsory testing?
In terms of frequency of testing, although the government guidance doesn’t suggest mandating regular testing, we think it should be encouraged.
The government recommends employers offer on-site employees access to at least two lateral flow tests each week to help reduce the risk of transmission. Our view is testing more regularly than that for office-based staff is unnecessary when you consider that for care home staff working with vulnerable people, the regime is twice weekly with lateral flow and once weekly with a polymerase chain reaction (PCR) test.
In terms of mask-wearing, employers should consider the use of face coverings by employees, particularly in areas where they come into contact with people they don’t usually meet. But having a policy on face coverings in place is unlikely to be helpful if employers themselves don’t follow it – so it’s important they lead by example.