As various restrictions put in place during the global coronavirus pandemic have lifted across the world, many businesses have embraced hybrid working. However, as we look to the future, are these working arrangements of the so-called “new normal” really here to stay?

We consider below whether there are already significant factors at play that could prompt many businesses to want to withdraw from hybrid working and, if so, what legal considerations this could entail.

  • Did businesses really embrace hybrid working, or did they just not want to be an outlier?

When we talk to our clients’ C-suites, it is clear that there is a split between those who believe hybrid working will be successful and those who have reservations. This divide is reflected in the increasingly common practice of implementing a hybrid working policy while at the same time incentivizing office attendance, e.g., by enticing employees with free lunches, after work drinks, pets in the workplace policies, etc.

  • Is hybrid working undermining team cohesion?

Many colleagues started homeworking in the pandemic with pre-existing working relationships, which undoubtedly eased the transition towards interacting via video-call. However, the recent global trend of mass resignations has meant that many people have joined new workplaces and teams on at least a partial, if not a full, homeworking basis. Arguably, this makes it harder to integrate with fellow team members and to build personal connections. Teams risk suffering due to a drop in the water cooler interactions, which can be seen as key, not only to building personal relationships, but also for efficiently and effectively sharing information, ideas, and experience. That stated, one person's enlightening watercooler moment is another person's distraction. The debate around hybrid working is flush with points and counterpoints.

  • Would an economic downturn accelerate or put the brakes on hybrid working policies? And what of hybrid working as a bargaining chip in this scenario?

It is clear that many economies are facing conditions ranging from uncertainty to severe economic turbulence. This could motivate some employers to double down on their hybrid working policies so as to reduce workplace overhead costs through the downsizing of expensive office space, or by cutting down on energy bills. Conversely, other employers, perhaps skeptical of the efficiency of hybrid working, may see this as an opportunity to push for increased workplace attendance.

Hybrid working has, for many, become a key criterion in their search for a job. With the current global war on talent, employers have been keenly aware of this. However, economic downturns generally shift the balance of power towards employers, particularly if recruitment and retention become less of an issue for the business.

In a recruitment market with employees who want hybrid working but with employers in a stronger position, could the idea of reducing pay to reflect hybrid working become more popular? Employers should be aware that this can pose significant legal and practical challenges.

  • Have the conditions for successful homeworking changed?

Stringent restrictions on social and other activities during lockdowns meant that, for many, the focus on their work increased. With restrictions lifted, distractions have re-emerged that could start to impact productivity, potentially bringing the question of employer monitoring to the fore.

It is possible for employers to monitor their employees remotely, e.g., the software to track time and emails exists. However, this must be balanced with the need for trust, employees' expectations with respect to privacy, and the legal framework that governs this area.

  • What stance will governments take on hybrid working?

The success and prosperity of retail and hospitality businesses in financial and professional districts (as well as the financial viability of infrastructure, particularly transport) is intrinsically linked to footfall from city workers. In an effort to mitigate the effects of an economic downturn on these industries, which took a hard hit during the pandemic, governments could start incentivizing workplace attendance in order to protect these industries.

There are also, however, calls on governments to encourage hybrid working, as it has been deemed to be a regeneration tool in local areas. The anticipated balance of voter power on both sides will, in all likelihood, have an influence on policy.

All things considered, approaches to hybrid working will come down to the particular industries, businesses, and employees involved.

If businesses do find themselves wanting to unwind their hybrid working practices, they will need to look at the legal structure behind them. Employers who implemented contractual hybrid structures, whether voluntarily or due to local regulations, may have far less ability to unilaterally water down or revoke their policies than employers who took a more informal / trial basis approach. This means that a formal process may need to be followed, possibly involving local employee representative bodies, such as works councils, with changes only being realistically possible with consent.

Such challenges may prompt employers to shy away from a complete unwinding of hybrid working and, instead, look to reduce the level of flexibility in such arrangements. Examples could include mandating specific days that must be spent in the office, limiting the number of days that can be worked at home, or temporarily restricting homeworking during certain busy periods, etc. Again, there may be legal hurdles that have to be overcome even to affect this level of change.

It will be interesting, in the coming months, to see how the considerations above play out on general corporate and government attitudes towards hybrid working.