No one could have predicted the way in which the pandemic has undoubtedly changed the world of work – some would say for the better, others would say for the worse.

Whatever your stance, in today’s candidate-driven market, employers find themselves in the increasingly difficult position of trying to keep current staff happy whilst also being flexible enough in comparison to their competitors in order to attract the best talent.

Though some people loved working from home and others hated it, rather surprisingly, productivity increased during the pandemic. And coupled with this newfound flexibility that people have become accustomed to, and appear to have framed their lives around, a significant number of employers are now embracing hybrid working – and this middle-ground position appears to be here to stay.

However, the practicalities of hybrid working continue to create a number of issues for employers, and although the model can work if managed properly, it can also lead to a number of both legal and employee relations issues.

A divided workforce

Arguably the biggest practical issue with hybrid working comes from the potential to create a two-tier workforce between those working remotely versus those in the office.

On the face of it, there should be no difference to the value or performance of a colleague whether they are in the office or at home. However, there’s often a perception that those who choose to commute and be present in the office (for example, a more junior employee who might prefer to be in the office to benefit from supervision) are in some way more important or more dedicated, and this comes from the top.

Further, hybrid working will clearly not be appropriate for all roles, and whenever employers treat employees differently and some are perceived to have more flexibility than others, this can breed resentment if the position is not properly communicated, which can lead to employee relations issues.

Indirect discrimination

Similarly, if an employer doesn’t allow anyone in a particular role to work on a hybrid basis, this can potentially lead to claims of indirect discrimination if the decision cannot be justified.

For example, a greater proportion of female workers may prefer to work on a hybrid basis as they are more likely to have childcare responsibilities, or this may disadvantage disabled employees who find it difficult to access the workplace (although there is an argument that if an employer has made reasonable adjustments for a disabled employee in the workplace, it may be difficult to replicate those adjustments at home).

In any event, it’s crucial that employees who choose to work on a hybrid basis are not treated less favourably than those who chose to work in the office.

Bullying

Interestingly, a recent study by law firm Fox & Partners reported a 44% increase in Employment Tribunal cases that included allegations of bullying. Could this be linked to the new hybrid way of working?

After all, some managers shy away from having difficult conversations in the workplace, but if employees are working remotely, it can become a lot easier to ignore any inappropriate behaviours as the person is ‘out of sight, out of mind’.

What’s more, although bullying in the physical workplace is easier to identify, bullying in the remote world is more subtle, and whilst the issue of cyber bullying and harassment online in the workplace context is nothing new, this has the propensity to get a lot worse within the hybrid model; it cannot be a coincidence that bullying allegations have increased against the backdrop of increased levels of hybrid or pure home working.

For example, a recent survey by the charity Rights of Women found that 15% of women who had experienced sexual harassment at work reported an increase in online harassment whilst working from home during the pandemic. Could this be because working from home with increased virtual interaction via video calls has allowed a degree of invasion into an employee’s personal life?

This arguably makes the working relationship less formal, so perhaps a simple policy of blurring backgrounds during video calls could help to re-assert an employee’s privacy.

In any event, it’s important that managers are empowered with the right skills to manage a hybrid workforce in order to stamp out any inappropriate behaviours as soon as they arise, and for employees working remotely to be reassured how to raise any issues they may be experiencing via grievance or bullying and harassment policies.

Access to opportunities

Exclusion of remote workers can also lead to bullying allegations if, for example, an impromptu team meeting is held with those members of the team in the office but doesn’t involve remote workers.

Whilst there is a clear benefit to collaboration in the office where employees can brainstorm ‘off the cuff’, and there is no reason why this cannot continue, employers who offer a hybrid working environment will need to find different ways of achieving the same goals they did pre-pandemic, such as the individual working remotely but using the workplace for team projects, meetings and truly collaborative work tasks.

The alternative is to genuinely assess whether the particular role can effectively be carried out on a hybrid basis.

Mental health and wellbeing

A wider issue relates to mental health and wellbeing issues. During the pandemic, the line between people’s work and personal lives became increasingly blurred, giving rise to ‘virtual presenteeism’, with those employees working remotely working additional hours to ‘justify’ them working from home in order to prove their value to the business. This can lead to stress and burn out if not managed properly.

Managers should therefore ensure that they communicate with remote workers regularly, not only from a wellbeing perspective but also from a career development angle, so that all employees are supported and reassured that their choice to work on a hybrid basis won’t hinder their progression.

Here to stay

Fundamentally, hybrid working is here to stay and whilst extra effort is required to manage a hybrid workforce, it can be a success if done right.

The starting point is a clear hybrid working policy to manage both employee and employer expectations.  It should cover issues such as health and safety, confidentiality and data protection, equipment, insurance, etc. but should be flexible enough so that, should the needs of the business change, the business can adjust accordingly.

That said, despite the ongoing momentum for hybrid working, if the role in question genuinely cannot be performed on a hybrid basis, employers should have the confidence to say so, rather than risk getting into hot water later down the line.