Do Employers Have to Agree to Hybrid Working?
The Covid pandemic created the biggest change in workplace practices in over a generation. Five years on, a BBC Panorama programme that aired in January 2025, highlighted the ongoing issues and disquiet that surround remote and hybrid working.
Hybrid working is the practice of working some days in the office and some days at home. According to the Office of National Statistics data and analysis published in 2024, “More than a quarter of working adults in Great Britain (28%) were hybrid working in the autumn of 2024.” And whereas the number of people working from home full time has decreased since 2020/21, “Hybrid working appears to have increased since the pandemic”.
Research seems to vary on the impact of hybrid working on productivity and morale. The reality is that this may be subjective and dependent on the business concerned, the number of days worked remotely and a variety of other factors.
However, a number of employers are now pushing back, including some big names such as Boots and Amazon, and are requiring employees either to return to the office full time, or for a minimum number of days. They cite numerous reasons including economic and social issues, and the importance of face-to-face contact when it comes to: building relationships, fostering personal and professional development, supporting collaboration and innovation, and improving productivity, as well as mental and physical wellbeing.
But whilst many employers are ready for the transition back to working in the office full time, similarly many employees are determined to resist, with some unions threatening industrial action. They in turn cite reasons that support continued hybrid working such as increased productivity, enhanced mental and physical health, and in some cases, an almost desperate need for flexibility to allow them to discharge their family responsibilities.
Can employers insist employees now return to the office?
This will depend on the terms of the employee’s contract and any agreed changes to this. If the contract clearly states the usual place of work is the office, the employer may be able to insist that the employee works in the office. However, if the employee has been hybrid working for some time, or if there is ambiguity about what was agreed, it may be harder for the employer to insist the employee returns and to do so could amount to breach of contract. If an employer is in any doubt about where they stand with an existing homeworking arrangement, it will be important to take professional advice.
Can employees insist on hybrid working?
At the moment, employees don’t have an automatic right to work flexibly. However, new laws passed under the last Government mean that from 6 April 2024, all workers legally classed as employees have the statutory right to request flexible working from day one of their employment. That can include a request in respect of the numbers of hours they work, when they start or finish work, the days they work and where they work.
Employees can make two flexible working requests in any 12-month period and employers must respond to a request within two months, unless an extension is agreed.
Employees do not have to explain the effect that acceptance of their request might have on the business, or how this could be minimised, and employers must consult with employees on the practicalities and reasons for the request and then respond in a reasonable manner.
That said, there is no duty on the employer to agree to such arrangements.
ACAS Code of Conduct
There is an ACAS Code of Conduct which whilst not a statutory requirement, may be taken into account by any tribunal considering any issues around a refusal to grant a request for flexible working. The Code sets out the requirements for both employees and employers and stipulates a decision to reject a request must be for one or more of the following business reasons:
- The burden of additional costs
- An inability to reorganise work amongst existing staff
- An inability to recruit additional staff
- A detrimental impact on quality
- A detrimental impact on performance
- A detrimental effect on ability to meet customer demand
- Insufficient work available for the periods the employee proposes to work
- Planned structural changes to the employer’s business
Employment Rights Bill – future changes to hybrid working rights
In October 2024, the new Government published its Employment Rights Bill. They are currently consulting on the reforms proposed in the Bill with a view to most of the reforms coming into force no earlier than 2026.
In respect of hybrid working, the reforms include enhancing flexible working rights so that employers may only refuse a request for flexible working where it is unreasonable to grant such a request, creating a presumption in the employee’s favour that the request will be granted.
The Bill provides a specified list of grounds for refusal which include the burden of additional costs or a negative impact on meeting customer expectations. It is anticipated that employers will be obliged to provide written reasons explaining why a request is reasonably refused.
What do employers need to do now?
Employers should now evaluate their existing processes and employment practices. With the balance likely to tip further in the employee’s favour when it comes to a request for flexible or hybrid working, employers need to assess their current arrangements: how successful and realistic are they, what has been the financial impact of hybrid working, what are the challenges? What data and staff feedback is there about productivity, staff retention, wellbeing and engagement?
At the same time, employers need to be proactive in identifying and evaluating alternative and more flexible ways of working. And the earlier this work gets underway, the better.
Other considerations
As we await the implementation of the Employment Bill, there are a number of other considerations for employers to take into account:
Processes
Employers will need to ensure they have a clear procedure to manage requests for flexible working efficiently and fairly. This should provide timelines for dealing with the request and any criteria for refusal.
Contracts of employment
If and when a request for hybrid working is granted, any changes should be confirmed in writing within the employment contract or through contract addendums. Now is a good time to review staff contracts and any changes that have already been agreed about flexible or hybrid working.
Health and safety
Employers have a legal duty to ensure the health and safety of their employees, and this extends to those working from home. Employers may need to provide training and support on safe home working practices whether that is in respect of the physical set up or in terms of mental wellbeing.
Data Protection and GDPR compliance
Employers must safeguard sensitive and personal data. Again, regular staff training may be necessary as well as the provision of the right equipment and technology and a clear policy on the handling of data.
Recruitment and policies
Employers should review their recruitment policies and documentation as well as any hybrid working policy. A hybrid working policy should set out expectations for remote work, the procedure for requesting changes and the requirements for office attendance.
Discrimination risks
Employers should bear in mind that in some case, a refusal to allow hybrid working could constitute indirect discrimination.
Training
Managers may need training and support to ensure good management of remote workers, including managing communications and ensuring effective working relationships. For junior staff, some of whom may never have worked fulltime in an office environment, a more considered approach may be necessary to ensure learning, development and a sense of belonging.
It would seem that for now the future is hybrid. If you would like to discuss an employment or flexible / hybrid working issue, please get in touch today.
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