Avik Biswas
IndusLaw, Bangalore
avik.biswas@induslaw.com

Vaibhav Bhardwaj
IndusLaw, Delhi
vaibhav.bhardwaj@induslaw.com

Ivana Chatterjee
IndusLaw, Bangalore
ivana.chatterjee@induslaw.com

Introduction

The Covid-19 pandemic disrupted the conventional idea of the workplace, given the acceptance of remote working arrangements. Over the years, many organisations have contemplated adopting a hybrid work model, but the pandemic compelled the adoption of remote and hybrid work arrangements. Now with the pandemic gradually transitioning into an endemic disease, employers in India and worldwide have actively started evaluating post-pandemic working models and a return to offices. It appears fairly certain that hybrid work models are here to stay, at least for the immediate future. While even traditional Indian employers have realised that the hybrid work model works, the manufacturing sector in India is, however, still ascertaining the most optimal way of deploying it.

Admittedly, there is no single formula for designing a hybrid work model and it depends completely on the operational requirements and technical infrastructure of the employer. Anecdotal data seems to suggest that a flexible work environment is widely preferred by most employees. For instance, some organisations have even witnessed an increase in employment applications from candidates in remote areas who otherwise were not in a position to relocate to a different geography.

Despite some obvious advantages of a hybrid work model, there are several legal and operational concerns and challenges that an employer in India needs to navigate to make it successful and effective.

Managing a hybrid workplace

Indian employment law

Indian employment legislation primarily envisages a physical workplace, and all provisions of an employee’s conditions of service are framed around it. Since current Indian employment laws do not recognise the concept of remote working, it leaves a significant grey area. Nonetheless, the Indian government has recently published the Draft Model Standing Order for the Service Sector, 2020 (the ‘Draft Order’) which allows employers of industrial establishments with 300 or more workers to permit service sector workers to work from home. However, the Draft Order does not define the term ‘work from home’, nor does it confer such workers any enforceable right to work from home. It is likely that the Indian Government will issue further clarifications on this.

Operational and technical difficulties faced by employers

While the hybrid work model has proven to be beneficial in a number of ways, there remain quite a few challenges that need to be addressed for building a successful hybrid work model, as summarised below.

Applicability of state specific legislations

In India, both the Union Parliament (federal legislature) and State legislatures have equal powers to enact laws relating to labour and employment matters. The employment legislation enacted by States primarily governs subject matters related to an employee’s service conditions (eg, working hours, break hours, leave entitlements, overtime payments). State-specific legislation differs from state to state. Therefore, an employer who has permitted its employees to work remotely, will be required to comply with such State-specific legislation depending on where its employees are located, thereby possibly increasing operational and administrative costs. Given that, an employer may often evaluate if it is operationally feasible for it to permit its employees to ‘work from anywhere’.

Statutory implications

During the pandemic, there have been several instances of employees working remotely from another country altogether. These situations may have multiple serious legal implications for both the employer as well as the employee, including issues revolving around taxation, jurisdiction of disputes, remittance of funds, immigration laws and deemed permanent establishment risks.

Data protection

The issue of data protection has been of grave concern to employers who have, or are intending to implement, a hybrid work model. A hybrid work model often gives rise to possible inadvertent confidentiality breaches or unauthorised use of an organisation’s confidential or proprietary information. Consequently, employers across the world and particularly in India have started looking again at their standard confidentiality provisions and related internal policies.

Investigations and standard operating procedures

Workplace investigations conducted in a remote working arrangement have proven to be a challenge for most employers. It has become difficult to gather information/evidence in physical form, while obtaining soft copies of evidence brings its own set of challenges. Furthermore, instances in which employees have unlawfully downloaded the organisation’s confidential information into their personal devices have also become increasingly common. This has compelled employers to require access to employees’ personal devices/digital accounts, giving rise to a new set of legal implications. It is safe to say that the jury is still out on how effective remote investigations have been.

Communication and collaboration

It is not uncommon to hear from HR leaderships across sectors that there have been frequent setbacks to communication and collaboration within internal teams due to the lack of in-person interactions.

On-boarding and off-boarding an employee

The remote on-boarding and off-boarding of employees is definitely a new concept for employers that they are slowly adapting to. The handing over of company property (when on-boarding as well as off-boarding an employee), conducting orientation programmes, installing software applications on employees’ devices (for example, applications that enable logging in for attendance purposes or schedule online meetings) are proving to be challenging for most employers due to the lack of in-person interactions.

Performance management

The hybrid work model, in which employees work remotely, has brought a common challenge across most levels concerning the accurate rating and/or review of performance parameters. While clear, direct and transparent communication is unsurprisingly key to resolving such problems, it cannot, though, be denied that Indian employers have had to put in additional efforts to devise performance management and assessment plans for such work.

Considerations when implementing a permanent hybrid work model

Given the popularity of the hybrid workplace model, it is important to bear in mind some of the following key considerations when implementing the model in India.

Work-from-home policy

Given that current employment laws in India do not envisage a hybrid/remote work model, it is crucial for employers to have a detailed and robust work-from-home policy/guidelines in place (the ‘WFH Policy’). The WFH Policy should expressly provide the rights and responsibilities of the employees when working remotely. Since employers have the flexibility to structure their WFH Policies according to their operational requirements, the terms and conditions of working remotely should be expressly captured. For example, if an employer requires its employees to work at the office for a certain number of days in a month/week, it should be expressly captured in the policy. Furthermore, the WFH Policy should expressly define the term ‘workplace’ to include the employee’s remote workplace as well. If the employer has establishments in several locations, it is recommended that a reporting office is specified for each employee who is working remotely.

Review of existing HR policies

To accommodate and successfully implement a hybrid work model, the organisation’s existing policies should be re-examined and reviewed thoroughly, with specific emphasis on: (1) internal disciplinary policy; (2) anti-sexual harassment policy; and (3) IT policies.

Necessary infrastructural requirements

To ensure the smooth functioning of the business, employers should ensure that their employees have the necessary infrastructure in place. A few organisations are also providing working-from-home allowances to help employees with the necessary supplies and set-up of their remote workplaces. A considerable number of organisations are also subscribing to online communication portals to facilitate communication within internal teams and with their business partners.

Data security

A hybrid work model may entail a considerable risk of data loss/breach. Therefore, employers would do well to tighten their information technology policies and put in place the necessary IT systems and protocols to protect confidential and proprietary information.

Internal training

For a hybrid work model to function successfully, it is crucial for the employer to conduct regular training sessions for its workforce to apprise them of:

• the particulars of the hybrid work model and how people should function, communicate and interact within it;
• training and collaboration within the team;
• provisions of the WFH Policy and other internal policies of the organisation (specifically with respect to their applicability to a work-from-home arrangement); and
• appropriate and acceptable behaviour in a virtual workplace.

Employee’s right to work from home

Currently, Indian employment laws do not recognise the concept of the hybrid work model or the remote work arrangement. Therefore, employees do not have an enforceable right to work remotely, except in cases where, during the pandemic, specific exemptions have been granted by State governments to certain categories of employees. If an employer requires its employees to work at the office (on a permanent basis or for a certain number of days in a week/month), the employer is well within its rights to instruct its employees to do so. It is also pertinent to note that failure to comply with such instructions from an employer may be construed as misconduct, for which the employer is well within its rights to initiate disciplinary action against such employee. However, before taking any action, the applicable notifications/circulars issued by State governments must be taken into consideration.

Conclusion

With the hybrid work model becoming increasingly popular, the concept of the workplace has perhaps altered. The workplace can no longer be limited to designated office areas. Although the implementation and administration of a hybrid work model will often be a challenge for Indian employers, it has several advantages for both employees and employers. If an employer is considering a permanent hybrid work model, it is crucial in India to have bespoke policies and internal protocols in place.