Whilst hybrid working has existed for a long time, it is a relatively new concept for chambers and it is safe to say that its prevalence amongst members of the Bar, and their employees, has increased significantly over the past year. As Britain emerges from the pandemic, anecdotal evidence suggests that chambers are now turning their minds to one of their key strategic priorities for 2021/22 – implementing a permanent blended environment of home and office working for their employees.

A successful hybrid workforce requires both a practical and a cultural shift. If they have not done so already, chambers must adapt or redesign the systems and processes connected to both home and office working and encourage their employees to remain flexible and take ownership of their respective experiences. Reflecting on the shifts that have occurred during the pandemic will help improve any existing understanding of the benefits and challenges of working within a blended environment. However, the approach that chambers take in respect of long-term implementation must extend beyond simplistic musings and instead be borne from full and proper consideration of the practicalities.

Having introduced a Work Smart Policy in 2016, the Bar Council has allowed employees to work from home for a set number of days per week for the past five years, and therefore has some experience of the practicalities traditionally associated with hybrid working. Our Policy operates on the basis that the presence of employees in the office will, dependant on their respective roles, vary between full-time office working and up to four days per week working from home[1]. It is a condition of our Contracts of Employment and the days on which we are present are largely considered to be flexible, although most have historically been determined from the outset in conversation with the relevant line manager and are re-arranged as circumstances require.

It should be noted from the outset that our Work Smart Policy differs from our Flexible Working Policy[2], which is more commonly used when an employee wishes to vary their contractual hours or otherwise. However, because Work Smart is a condition of our Contracts of Employment, the two can become intrinsically linked if, for example, an employee wishes to move from “full-time office working” to “working from home up to three days per week”. Although it is not strictly necessary, incorporating Work Smart into Contracts of Employment means that any variation at the request of the employee typically engages the Flexible Working Policy. It should also be noted that any variation that is determined by the employer requires appropriate consultation with the employee, but that building it in to Contracts of Employment offers the latter a certain level of security, which should mean that it is viewed by them as a more valuable benefit than simply having the opportunity to make a flexible working request at some point in the future, the outcome of which will be uncertain.

When attempting to implement a Work Smart Policy, the most effective approach is one of consultation. As a result of the circumstances in which we found ourselves during the pandemic, the Bar Council decided to revise its Work Smart categories and, more specifically, to: (i) remove the categories of “Fixed Desk Worker” and “Occasional Home Worker”; (ii) change the “Regular Home Worker” category from “one to two days per week working from home” to “one to three days per week working from home”; and (iii) introduce a new “Predominant Home Worker” category. We also decided to review the existing categories for all employees.

To enact change[3], we first asked our directors, heads, and managers to consider, in discussion with their respective reports, whether any of their existing working patterns could reasonably be altered. During the consultation process, we found that it was important to emphasise from the outset that the requirements of each employee’s role would trump any personal preferences, but that the latter would be taken into consideration throughout. We also considered any potential for indirect discrimination, for example on the grounds of age, and discussed using a single category within specific teams or across roles of the same type to ensure that we maintained our equality, diversity, and inclusivity standards. Finally, we discussed the proposed alteration to the “Regular Home Worker” category in a series of floor-wide virtual meetings, which afforded the Bar Council’s staff an opportunity to express any concerns in an open and transparent environment, and hear the responses of our Chief Executive Officer, Malcolm Cree CBE. Upon conclusion of the process later this month, our HR Team will be issuing Employment Contract Amendment Letters to all those who, following the consultation process, agreed to changes to their terms, and we will start to implement the new arrangements when we feel that it is safe to do so and in accordance with government guidelines.

This process may not suit all, but it is hoped that chambers will consider it a ‘starter for ten’ as they continue to strive towards modernising their respective businesses. Merging two fundamentally different experiences requires careful consideration and planning, and presents challenges to work culture, expectations and boundaries, communication and calibration. However, the business benefits for employers who take hybrid working seriously and deliver it well are numerous, and it is therefore worth investing the time and training to get it right.

Carolyn Entwistle is the Bar Council’s Director of Services and Tom Pennington-Hare is Legal Director at Fox Williams LLP

[1] The full list of categories between 2016 and 2021 were as follows: (i) Office based worker (Fixed) (ii) Occasional home worker (ad-hoc); (iii) Regular home worker (1-2 days per week); (iv) Majority home worker (minimum 3 days per week). They are now: (i) Regular home worker (1-3 days per week); and (ii) Predominant home worker (5-8 days working in the office).

[2] The Bar Council’s Flexible Working Guide for self-employed practitioners can be found at https://www.barcouncilethics.co.uk/wp-content/uploads/2017/10/bar_council_flexible_working_guide_july_2016.pdf and sample Flexible Working Policies for employees can be found on the ACAS website, at https://www.acas.org.uk/example-flexible-working-policy.

[3] CIPD has produced some useful guidance on hybrid working and planning for the future, which can be found at https://www.cipd.co.uk/knowledge/fundamentals/relations/flexible-working/planning-hybrid-working#gref