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Return to work: Guidance for Employers and Hybrid Working

Gateley Legal

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On 19 January 2022, the Government announced a return to Plan A in England amid beliefs that the Omicron wave has peaked nationally. The requirement to work from home ended with immediate effect, the legal requirement to wear a face covering ended on 27 January 2022 and there is a view that self-isolation regulations may expire on or before 24 March 2022. 

Hybrid working arrangements and proximity bias implications

According to a new survey conducted by Slack's Future Forum, the percentage of people working in hybrid working arrangements has increased to 58% from 46% in May 2021. However, while some people are thriving with greater flexibility, there is a growing concern of a possible “proximity bias” between remote and in-office employees. Essentially, proximity bias is the idea that there is an unconscious tendency to favour employees who work in a closer proximity to their leaders as opposed to more remote employees.

The survey concludes that as women, ethnic minorities and working parents opted to spend more time at home, they are more likely to suffer as a result of proximity bias. This in turn could create a risk of further entrenching inequality along racial and gender lines and give rise to discrimination claims. It could also give rise to constructive unfair dismissal claims.

With this in mind, employers should consider the implications of hybrid working for its employees to ensure they are consistent, fair and inclusive.

Equality in the workplace

Equality is the fair treatment of people regardless of their gender, race, disability, religion, nationality, sexual orientation or age. An inclusive working environment enables employees to feel that they belong without having to conform, their contribution matters, and they are able to perform to their full potential regardless of their differences. Examples of good practice inclusivity are as follows:

  • Employers should ensure its employees are supported and encouraged to think inclusively when managing hybrid workers by being asked to undertake training (or refresher training) in relation to inclusivity and equal opportunities. An up-to-date hybrid working policy should be introduced, as it offers guidance and sets expectations for agile employees.
  • Employees should not be prevented from carrying out learning and training opportunities because they are working remotely. They should ensure that they offer a high standard of training to its employees, both face-to face-and remote online training to ensure employee development remains at the required level.
  • Employers should be aware of the risk that remote workers could lose their voice or become unnoticed if decision-making discussions have a tendency to take place in the office when colleagues are together. This could happen when a remote meeting is adjourned for a short break. The remote employee logs off alone. However, the office-based employees continue their discussions and decisions are made. When the meeting reconvenes, depending upon how these discussions are relayed, it could discourage remote employees from using their voice, from engaging and from putting forward their own ideas. If employees are made aware of such scenarios, it could help to stop them from being played out in reality.
  • Work social events and team building sessions should be planned so that some take place in person and others virtually, moving away from a drinking culture, in order to allow all employees the opportunity to attend those events they feel comfortable with.
  • Employers also need to be aware of the risk that leaders may struggle to provide guidance and leadership to its employees remotely. Without strong leadership, there is a risk that offices could become dominated by the more junior, inexperienced employees who are developing without the benefit of hands-on management support. This could weaken the quality of employee development, which in turn weakens the calibre of future management.

As an employer, it is worth considering the risks associated to its business with hybrid working and taking steps to reduce these where possible.

Written in conjunction with Trainee Solicitor, Kelly Evans

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