The pandemic has prompted many organisations to adopt ‘hybrid’ work models. Seyfarth’s global Future of Work pulse survey in 2021 found that navigating remote and hybrid work was the number one concern that in-house legal and business leaders had coming out of the pandemic. There are a number of key reasons why ‘hybrid’ work is predicted to continue, including:

  • health and safety: with new COVID variants an ongoing risk, home working will likely remain a key safety measure for businesses.
  • employee engagement: surveys show that employees increasingly value and expect home working.
  • productivity: recent studies indicate many employees work very productively at home.

Given these pressures on businesses, now is a great time to take stock, strategise and prepare for the future. So, what are some of the key issues that future focused businesses and HR leaders should think about when looking at longer term hybrid working options in 2022 and beyond?

How do you support health and safety best practice when you don’t control the workplace?

Employers and their officers have a range of work health and safety legal obligations that cannot be contracted out of, and still need to be discharged regardless of whether employees are working at the desk next to their manager or from their living room. Employers often have much lower visibility and practical control of remote working hazards such as un-ergonomic work station arrangements, cables, tripping hazards, electrical or equipment safety, excess work hours, stress, anxiety, isolation or loneliness. Risks to physical and mental health and safety need to be considered and addressed (noting there has been an increasing focus on mental health risks as a direct result of the pandemic).

How do you build an inclusive culture and effectively mentor staff when people rarely meet in person?

There can be unintended cultural downsides of having a team who rarely interact in person. Many businesses will be looking for initiatives that enable all team members to feel included and valued, have opportunities to share ideas and progress, and access support and mentoring. Two-way communication has never been so important in a world where, without the right measures in place, employees can go a long time without meeting each other or their managers.

Technology can certainly go a long way to keeping people connected and engaged, but it is not the be all and end all. In fact, there is always a danger of issues like bullying and harassment flourishing when workers think no one is watching that need to be carefully managed.

As more and more businesses embrace flexibility, we are seeing reports of creative solutions to boost personal engagement and foster collaboration and team-building, such as ‘keeping in touch’ days (where all staff or certain teams meet in the office on agreed days), making smaller satellite offices available in the suburbs, and more in-person training and celebrations.

How do you account for industrial instrument restrictions on flexible work?

Many industrial instruments restrict when and where work can be performed, when breaks must be taken and what amounts have to be paid to employees for work at different times. This adds a layer of complexity for hybrid working policies, which might inadvertently breach a legal standard or fundamentally change the remuneration required to be paid. Any hybrid working arrangements need to be assessed against legal requirements to ensure there are no unintended consequences of permitting worker choice.

How does cross-border hybrid work affect employer compliance, insurance and risk?

Employees working across jurisdictions create a number of challenges for global employers that need to be carefully considered. In Australia, employers need to consider impacts of any cross-border work on state-based compliance requirements, including, for example, any changes regarding the applicable choice of law, jurisdictional coverage under discrimination and work health and safety laws, local workplace surveillance requirements and confirming the correct payroll tax and workers compensation arrangements are in place. Some states have also introduced criminal sanctions for breaches of labour hire licensing laws, industrial manslaughter and wage theft, which would need to be complied with if workers commence working in those jurisdictions.

How do you ensure that remote working arrangements are not inadvertently discriminatory?

While flexible working has long been considered a tool to remove barriers to diversity and inclusion, this also requires navigation of a range of possible diversity and discrimination risks that can arise from remote working.

What legal changes and claims may be on the horizon for hybrid work?

The law is playing catch up to fast-moving cultural and technological change. Globally, we have seen hybrid work driving a range of industrial pressures and legal reforms. For example, Portugal has recently followed countries such as France, Spain, Belgium, Italy, the Philippines, Argentina and India by introducing a legal right to disconnect. The UK government is also considering a proposal to make flexible working the default. Locally, the ACTU has also developed a series of claims for working from home.

In short, employers can and should expect to face additional claims and/or legal challenges as more workplaces move to implement hybrid working models. Employers that invest in comprehensive planning and risk management at the outset will be best placed to meet these challenges.