Laying down the law

The rail sector has been hard hit by the effects of Covid-19 but has continued to move both passengers and freight around the country despite a depleted workforce

Asignificant number of jobs within the industry require staff to be at their place of work to carry out their roles. However other jobs, notably back office and planning, can be undertaken remotely. During the second half of 2021 there was a move towards flexible or hybrid working and the Chartered Institute of Personnel and Development (CIPD) has recently published new guidance for employers on supporting hybrid working.

Why have hybrid working? Hybrid working is a form of flexible working where staff spend some of their time working remotely e.g. from home and some of their time working in their employer’s workspace. Employees gain more flexibility to work where they want and work can be undertaken in conjunction with other forms of flexibility, including time flexibility. It does, however, require a type of workload which does not require constant presence at a specific place of work such as a railway station or freight depot.

Covid-19 has greatly impacted working life and brought hybrid working into mainstream conversation in the UK. Although a small number of staff were already working remotely prior to March 2020, the extended period of enforced homeworking during the pandemic has led to a considerable interest in hybrid working. Employers have recognised the benefits of hybrid working, including a better work / life balance, a greater ability to focus with fewer distractions, more time for family and friends, saved commuting time and costs and higher levels of motivation. An ACAS poll found that over half of employers in Great Britain expect an increase in staff working from home or remotely part of the week after the country comes out of the pandemic.

Employers have a responsibility for the health and wellbeing of their employees and the opportunities from hybrid working may promote such wellbeing where it can be implemented in the workplace. With rising interest amongst employees for continued flexible working, it is being suggested that offering hybrid working could be key in attracting new talent, particularly for industries wishing to encourage and develop different types of employees.

What does the CIPD Guidance say? The CIPD Guidance on hybrid working has been developed in collaboration with members of the Government’s Flexible Working Taskforce and supplements the ACAS advice previously given on hybrid working. The guidance suggests that organisations looking to implement hybrid working should:

• Begin by defining what hybrid working would mean in their circumstances. • Take into account strategic goals and input from workers. • Consider how to recruit and manage

hybrid workers effectively. • Pay attention to ensuring that hybrid working policies are fair and inclusive to avoid any unintended potentially discriminatory consequences. • Provide training to managers, review

HR processes, and undertake ongoing listening exercises with employees.

The guidance reminds employers that hybrid working continues to evolve and they should be constantly reviewing and developing their approach towards flexible working.

Effective implementation of hybrid working The guidance makes it clear that organisations need to consider how hybrid working can operate in various parts of an organisation. It may work for some parts but not for others. However, simply because some activities need workers to be physically present to perform their work, this should not stop other staff who could perform their tasks remotely from being offered hybrid working.

In deciding whether to move forward with hybrid working arrangements, it is advisable for employers to: • Consult with staff on the practical considerations regarding introducing hybrid working. • Support and manage workers who are hybrid working and ensure all hybrid workers are treated fairly. • Think about the design of jobs and the

structure of weekly or daily tasks then reflect on what needs to change in terms of systems, processes or activities to support hybrid work. • Create a hybrid working policy. • Handle hybrid working requests from staff.

Hybrid working is a largely new and untested concept so organisations should be prepared to adapt their approach.

Continuing to ensure that staff have a right to work in the UK While the effects of Covid-19 have put pressure on company workforces, the obligations of employers to ensure that their employees have the right to work in the UK have remained. Failure to ensure that staff have the right to work can result in the employer being charged a penalty by the Home Office. These penalties can be significant and are applied for each illegal worker. Where the employer carries out the right to work checks in accordance with the Home Office’s Code of practice on preventing illegal working, an employer will have a statutory excuse against a civil penalty being applied against it.

On 17 December 2021, the Home Office announced that, as of 6 April 2022, Biometric Residence Card (BRXC), Biometric Residence Permit (BRP) and Frontier Worker Permit (FWP) holders will no longer be able to present physical BRPs, BRCs or FWPs in order to evidence their right to work in the UK. Instead, these individuals must evidence their right to work via the Home Office’s online service.

Carrying out an on-line ‘right to work’ check The process of carrying out an online right to work check requires the input of both the employee and the employer. It should be completed as follows: 1. The employee must first view their own

Home Office right to work record. The employee then shares this information with their employer by providing them with a ‘share code’. 2. The employer can then use the ‘share code’ along with the employee’s date of birth to access the employer section of the website. 3. The employer checks the details on the employee’s online profile to ensure that they have the right to work and that there are no restrictions on that right. The employer must also ensure that the photograph on the profile is of the individual presenting themselves

for work – this must be checked in the presence of the individual, either via video or in person. 4. Finally, the employer must retain a copy of the ‘profile’ page which confirms the employee’s right to work. This retention must also comply with the employer’s data protection procedures.

The Home Office intends to publish additional guidance relating to the changes above shortly, but has already confirmed that employers will not need to conduct retrospective checks on individuals who presented physical BRPs, BRCs or FWPs up to and including 5 April 2022.

Martin Fleetwood is a Consultant at Addleshaw Goddard’s Transport practice. The Rail Team has over 30 lawyers who advise clients in both the private and public sectors across a wide range of legal areas. As well as contractual issues, the team advises on operational matters, franchises, concessions, finance, regulatory, property, employment, environmental and procurement issues.

Disclaimer: This article is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.

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