Legal

Key HR considerations of the move to remote working

21 Oct 2020 By Hannah Netherton and Anna Cope

Hannah Netherton and Anna Cope explore whether employment law can keep pace with the home working revolution

A year ago, few businesses would have predicted that HR agendas would be focused on the consequences of a global pandemic, national lockdowns and a remote working revolution.

In the new reality, employers are considering a blended or hybrid model of remote working, for those who can, but others are contemplating permanent home working. With these developments come an array of challenges – not least how to implement these changes lawfully. Many businesses may hope that the existing legal framework evolves rapidly to accommodate these new structures, but this is unlikely to be a priority for a government focused on the public health crisis and Brexit negotiations.

For the time being, the current legal parameters for managing structural workforce changes still apply. Some of the key considerations for HR practitioners include:

  • Contractual arrangements – implementing permanent changes to staff terms on location, hours or pay will be easy where employees consent. However, the position becomes more complex where employees (or their union representatives) are not on board with the company’s proposals. Imposition of contractual changes can lead to constructive dismissal claims. Reliance on flexibility clauses in contracts or resorting to dismissal and reengagement can carry legal risk and may damage employee relations. Going forward, businesses should recruit with an eye on the future and update their template employment agreements so they are consistent with their overall strategy. For example, building in flexibility on places of work, travel requirements and updating working practices.
  • Compensation – businesses are increasingly planning new pay strategies to accommodate both flexibility of location and working hours. Many staff either cannot, or do not want to, continue working a traditional 9-5 pattern. Organisations will want to consider whether it remains appropriate to pay a London weighting or other location allowance if staff can do their job from anywhere, while keeping staff incentivised. International remote working brings even more challenges, particularly when it comes to tax and immigration.
  • Remote management – many managers, especially those less comfortable with digital platforms such as Zoom, Google Hangouts, Teams and Slack, are on a steep learning curve when it comes to managing remotely. Good management remains crucial and, though the finance director may be looking to cut costs, L&D budgets are needed now more than ever.
  • Monitoring performance and conduct – one of the biggest barriers to flexible working has been concerns about oversight and productivity. This year has shown that these concerns are not necessarily well-founded. Productivity has largely remained strong among businesses that have been able to weather the economic impact of the pandemic. Many traditional disciplinary matters such as theft or harassment are less prevalent. However, instances of underperformance or other forms of staff misconduct will remain. Although there are technological solutions to employee monitoring, management should challenge itself as to whether these are necessary and reflective of the organisation’s cultural values. Trust remains key in the employee/employer relationship. Any staff monitoring technology must accord with the organisation’s internal policies and contractual arrangements, as well as its wider data privacy obligations. A data privacy impact assessment should also be undertaken to ensure that the impact on an individual's data privacy rights is mitigated as far as possible.
  • Staff wellbeing – underpinning these issues, and a matter that should be at the forefront of business planning, is how to ensure employee wellbeing and good mental health in this new world of remote or blended working. Care should be given to the integration of new joiners, issues of isolation for those who live (and now work) alone, and provision of a safe working environment in terms of equipment and support. Ongoing risk assessments and revisiting of the resources available to staff are recommended, as is implementing a mental health policy.  
The existing legal framework can accommodate the remote working revolution. Businesses should carefully consider the cost-benefit analysis for their organisation of making these changes and ensure they are implemented in a way consistent with their legal obligations and organisational values. Businesses that can be agile in the face of the changing landscape have every chance of successfully adapting to the new workforce realities.

Hannah Netherton and Anna Cope are employment partners at CMS

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