Stepping back from hybrid working?

Hybrid working has become a permanent fixture in many UK workplaces, with clear benefits reported around productivity, wellbeing, and employee satisfaction. However, an increasing number of employers, particularly in professional, financial, and technical sectors, are now reassessing this balance and encouraging more in-person attendance.

There’s growing recognition that certain activities, such as mentoring junior staff, building team cohesion, or fostering innovation, are simply harder to replicate remotely. That said, any move to reduce remote working comes with important legal and practical implications.

Below, we explore what employers need to consider before making changes to working arrangements—and how to reduce the risk of legal claims or employee dissatisfaction.

Check the Contract: What Was Agreed?

The first step should be to start with a contract audit. For every employee, ask:

– Was hybrid working part of the original employment contract?

– If not, did it develop as a response to COVID-19?

– Was the arrangement documented as temporary or permanent?

– Do you have a contractual right to make amendments to their terms of employment?

If hybrid working was expressly agreed in writing as part of the employment contract or a subsequent variation, you’ll usually need the employee’s consent to change it. If it evolved more informally, you may have greater flexibility but you will need to tread carefully if the pattern has continued for a long time.

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Tip: Don’t just review contracts but also internal emails, policies, and manager communications during and after the pandemic. This will help you assess whether a permanent change was implied, even if not formally recorded.

Temporary vs Permanent Arrangements

If hybrid working was presented as a temporary measure, for example during the pandemic, and no permanent variation was agreed, then the employer may have scope to revert to previous working patterns.

However, if employees have been working remotely for a substantial period, tribunals may consider it an established custom and practice, especially if the employer hasn’t actively reviewed or redefined the arrangement.

Tip: If there’s uncertainty, start with a consultation process. Engage staff, explain the rationale, and invite views before making firm decisions. This can help avoid resistance and strengthen your legal position.

Changing Terms: Consent or Consultation?

Where remote or hybrid working has become a contractual right, you cannot change it unilaterally. You will need to:

– Seek agreement from the employee(s) or

– Enter into a formal consultation process if agreement isn’t reached

In extreme cases, an employer might consider terminating the existing contract and offering new terms, often referred to as “fire and rehire.” However, this approach is controversial, legally complex, and should only be a last resort following legal advice as when it is done incorrectly you may be faced with unfair dismissal claims.

Tip: Document all consultations clearly. Set out the business reasons for change and any alternatives considered. Always aim for agreement before considering enforcement.

Expect Flexible Working Requests

Under the Employment Relations (Flexible Working) Act 2023, employees:

– Can now make two statutory requests per year

– No longer need to explain the impact on the business; and

– Can expect a decision within two months

Any blanket policy to increase office attendance is likely to trigger an increase in flexible working requests from those seeking to retain current arrangements.

Tip: Prepare managers now to deal with requests fairly and consistently. Refusals must be based on one of eight permitted reasons (such as impact on quality or performance), and vague or unjustified rejections increase legal risk.

Addressing Discrimination Risks

Changes to hybrid working policies can give rise to indirect discrimination, particularly if they disproportionately impact certain groups with protected characteristics under the Equality Act 2010.

Examples include:

– Women with childcare responsibilities, who may find remote working essential to manage school hours;

– Disabled employees, for whom commuting or sensory environments may create substantial disadvantage;

– Neurodivergent individuals, who may thrive better in home-based settings; and

– Employees with religious needs that require flexible schedules

Tip: Carry out an Equality Impact Assessment before implementing any changes. Consider whether your return-to-office policy might inadvertently disadvantage particular groups and, if so, whether it can be justified as a proportionate means of achieving a legitimate aim.

You should also be prepared for reasonable adjustments where returning to the office presents a barrier for disabled staff.

Practical Next Steps for Employers

If you’re considering a shift in your hybrid working model, here’s a quick checklist:

– Review all employment contracts and HR policies
– Identify whether hybrid working is contractual, implied, or discretionary
– Clarify whether arrangements were temporary or permanent
– Engage in open consultation with staff and/or representatives
– Prepare to handle flexible working requests lawfully
– Assess for any discriminatory impact or reasonable adjustment needs
– Communicate clearly, consistently, and with empathy

The conversation about hybrid work isn’t just operational, it’s legal, cultural, and personal. Encouraging more time in the office may be legitimate, but how it’s handled will determine whether the process is successful or fraught with challenges. Take the time to review your legal footing, plan your approach, and support your teams through the transition. Doing so should reduce risk and reinforces trust.

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This article aims to supply general information, but it is not intended to constitute advice. Every effort is made to ensure that the law referred to is correct at the date of publication and to avoid any statement which may mislead. However, no duty of care is assumed to any person and no liability is accepted for any omission or inaccuracy. Always seek advice specific to your own circumstances. Fraser Dawbarns LLP is always happy to provide such advice.