Businesses worldwide have recently adopted a firmer stance on their working practices. Whether it involves a commitment to ongoing hybrid work or a complete return to traditional office environments – most recently exemplified by tech giant Amazon – mandates are being established at the board level.

However, following a period during which employees enjoyed significant discretion regarding their working locations, many of these mandates are facing resistance. Recent headlines have revealed that government ministers have been quietly disregarding rules that require civil servants to be in the office three days a week, a sentiment echoed across various sectors, with managers informally allowing their teams to flout company mandates.

This silent trend, characterised by hybrid working policies being applied inconsistently or overlooked entirely, has been termed “hushed hybrid.” It carries significant risks, ranging from legal challenges and HR complications to broader commercial consequences and cultural disruptions. The issues associated with “hushed hybrid” are numerous.

So, how can businesses identify and tackle the hidden legal and commercial pitfalls of permitting a “hushed hybrid” practice to persist unchecked, ensuring long-term success?

What you need to know

The primary concern with hushed hybrid is the inconsistent treatment of staff within an organisation. For instance, if an employee in the IT department faces disciplinary action for failing to attend the office three days a week, while a sales team member, who is also disregarding the policy, goes unaddressed, this raises two critical issues:

1. Discrimination: Unequal enforcement of the policy can create perceptions of favouritism and unfair treatment. If a difference in treatment lacks a clear, objective basis, it raises concerns. For example, if an employee being disciplined notices that their female colleague is allowed to ignore the policy, they may question whether this inconsistency is based on gender or another protected characteristic under the Equality Act 2010.
2. Policy: If a business is committed to enforcing its policy and proposes disciplinary action for repeated breaches, such actions are undermined when certain employees are exempt from compliance. For example, if a team’s top performer is not reprimanded for ignoring the policy, any disciplinary action taken against another team member for non-compliance could be perceived as unreasonable due to this inconsistency. Consequently, the company’s ability to uphold its own policy is significantly compromised by hushed hybrid.

When deviations from policy become entrenched in an employee’s routine over time, there is also the risk of creating an implied contractual term that permits them to maintain their current working arrangements, depending on the specific terms of their employment contract. This results in a problematic situation where a policy applies to some but not others, solely due to a manager’s failure to enforce it appropriately.

Commercial 

The legal implications are further compounded by commercial and cultural ramifications, potentially leading to deeper issues that hinder productivity and provoke legal claims.

Return-to-work policies typically arise from deliberate choices regarding the culture an organisation wishes to cultivate. Whether emphasising employee flexibility or prioritising collaboration, boards actively align policies with their cultural and strategic objectives. If a policy is consistently ignored, the business aims underpinning it are inevitably weakened.

More concerning is what this disregard for policies suggests about management’s commitment to company goals. It signals a disconnect between senior and middle management or, worse, a disregard for board directives and corporate policy by managers. Employees often model their behaviour on their managers, which could exacerbate tensions with board-level decisions and diminish their connection to the company’s values and mission.

Ultimately, hushed hybrid can foster a cultural disconnect, creating an impression of an employer that “says one thing but does another.” This mindset erodes trust, making it more likely that employees will seek to address perceived injustices through legal means rather than internally, as their confidence in the company’s sense of fairness diminishes. Poor culture and legal claims are often intertwined.

Practical steps

If your organisation is revising its approach to hybrid working or adopting a stricter enforcement stance, consider the following to mitigate hushed hybrid:

1. Establish genuine business reasons: Ensure that there are clear business objectives supporting your policy. Employees are likely to see through a “knee-jerk” response lacking solid foundations.
2. Anticipate employee response: Prepare for the initial reactions your approach may receive, particularly from managers responsible for enforcement. If resistance is anticipated, engage with managers to understand and address their concerns. Ensure that staff grasp, and to some extent accept, the business rationale behind the policy, even if it isn’t their preferred option. Highlight the benefits for both the organisation and employees in your communications.

Implement oversight on compliance: Introduce broader monitoring of policy compliance, so that if managers evade enforcement or adopt an inconsistent approach, this can be identified and rectified promptly.