The Conservative Party, in its 2019 manifesto pledged to make it easier for all workers to work from home and said they would encourage home working as the default position unless an employer has genuine reasons to refuse a request. They also said they would consult on flexible working arrangements but made no commitment to legislate to strengthen the existing weak flexible working regulations under which only one in three requests to work flexibly are granted according to the TUC.
Scottish Hazards is not holding out any great deal of hope that legislation will follow on from any forthcoming consultation. Why would a party ideologically opposed to workers’ rights and trade unions want to impose overly burdensome (their words not ours) regulation on big business pals?
Without effective legislation employers will continue to ignore reasonable requests for hybrid working in the same way they have for flexible working, refusing requests mainly on the grounds of costs to the business, negative impact on quality of service and the business’s ability to meet customer demand as well as any negative impact on an individual’s performance.
During the last lockdown Scottish Hazards dealt with a case involving a company refusing a group of workers home working, when the law stated workers should not leave home for non-essential purposes. The company’s claim was they had a duty of care under health and safety legislation to ensure their workers were not placed in a position through home working where they could not meet their performance targets leaving them open to disciplinary action!! This must be the most bizarre interpretation of the general duty of care imposed on employers under the Health and Safety at Work Act 1974 but perhaps an indication of some of the health and safety challenges trade unions and the Hazards movement face moving forward to the reality that is hybrid working.
What are the hybrid health and safety challenges?
1. Employers must carry out suitable and sufficient assessments to identify risks arising from their work activity, this obviously now includes risk arising from hybrid working.
2. Home based workstations require to be risk assessed in this same way as office-based workstations and equipment provided should be safe to operate and subject to regular electrical safety tests where required
3. Any hybrid working policy should include advice and information for workers who may be exposed to domestic abuse due to increased home working. Workers in this situation should be prioritised for continued office-based working if this is requested.
4. Risks arising from hot desking should not only include infection control measures but also any existing specific adaptations provided to individuals with disabilities that are missing from workspaces allocated to disabled workers during their days in the office
5. Increased lone working comes with challenges for employers and workers alike, not least the impact on the health, safety and welfare of the worker as the home element of hybrid working does not absolve the employer of their health and safety obligations. This is particularly important for those who live alone and now increasingly might work alone. Employers should communicate regularly with lone working staff, put in place suitable and independent support services, and actively encourage their use.
6. Work related stress and mental health of workers has never been tested so much as it has during the pandemic and it’s likely to be placed under more pressure as more and more hybrid working arrangements are introduced or perhaps more accurately, workers are refused the opportunity to work under hybrid working arrangements. According to a table on the HSE website of European comparisons of employers who claim to have in place action plans to manage work related stress with 71.2% of UK employers stating such plans were in place placing them only slightly behind Sweden at 71.3%. Frankly we find this table hard to believe. From work we have done in the past on stress and mental health in Scotland’s public sector many employers in the public sector have not carried out what we would judge to be a suitable and sufficient stress risk assessment on occupational stress risk. A few questions on stress in a broader staff survey is not stress risk assessment, it is a staff survey.
The move to hybrid working should be a trigger to the HSE to set out an action plan of their own to test the accuracy of their data and also take action against employers who do not implement the HSE’s Stress Management Standards or some other work related stress risk assessment tool.
7. Flexible/Hybrid working does not mean working more hours, a trap that is far too easy for home workers to fall into, current working time regulations apply for time spent working from home as well as in the workplace. Clear guidelines and policies should be put in place to ensure workloads are achievable in hybrid working patterns.
8. Hybrid working polices should include arrangements for managing performance, employers should recognise the boundary between legitimate performance management practice and unacceptable surveillance and intrusion into employee’s home lives.
9. Employers have a responsibility to ensure data provided and stored by employees working from home meets their obligations under GDPR, this should include any necessary equipment and training to ensure home workers can comply with the regulations.
10. Presenteeism was identified as being a bigger problem during the lockdowns, mainly due to redundancy fears and wider job insecurity. Hybrid working may well continue this trend and many workers who are too ill to work from the office will also be too ill to work from home. As part of a hybrid working policy, sickness absence policies should be reviewed, and clear instructions included to consider absence while hybrid working.
Our colleagues at Greater Manchester Hazards Centre are developing materials for reps to provide help negotiating hybrid working policies and identified the above as key hybrid health and safety and issues to be considered and we would not disagree. No doubt far more will come to the surface in the coming months.
Good hybrid working arrangements are more likely to be introduced in trade unionised workplaces where members have an independent and effective voice, the key dimension of fair work. Trade unions are already negotiating safe and healthy return to work arrangements including hybrid working and have done so right throughout the pandemic. But what about workers in non-unionised or anti trade union workplaces? They should be able to instigate hybrid working requests and expect such requests to be treated seriously by employers. We doubt this will happen unless existing legislation is strengthened to make hybrid working a legal obligation within employment contracts and unreasonable refusals can be challenged more easily at tribunals.
Good policies, including specific health and safety provisions are not only good for businesses and their workers but employers have legal obligations to consult workers on health and safety matters, either through the SRSC Regulations 1977 or the Health and Safety (Consultation with Employee) Regulations 1996. It is vital workers are consulted on hybrid working and its health and safety implications and any concerns treated seriously by employers.
In non-unionised workplaces covered by the latter set of regulations Scottish Hazards experience throughout the two COVID lockdowns has been less than positive, where employers carry out consultation, they tend to ignore the concerns of their employees and communicate steps they were probably going take in any event. This is not consultation it is communication.
However, without any enforcement of either set of health and safety consultation regulations and no laws underpinning hybrid working other than the ineffective flexible working laws it is clear workers wishing to avail themselves of flexible working arrangement may have a battle on their hands to make that hybrid working healthy and safe.
Blog by Ian Tasker, Scottish Hazards