Navigating flexible work requests: employer obligations

As organisations navigate the best path forward in terms of flexible work arrangements, one expert emphasises the importance of giving adequate consideration to requests and documenting the process thoroughly.

One mistake an employer could make in response to a request for flexible working is to write it off as being too hard to manage, says Clancy King, partner at DLA Piper, who will be speaking on the subject at HRD’s upcoming Employment Law Masterclass Sydney.

King’s presentation will include tips on how to manage requests to avoid ending up before the Fair Work Commission.

“Employers need to demonstrate to the Commission and the courts a preparedness to give every consideration to these requests,” she says. “It's really important that everybody is clear why the request is being made, what the substance of the request is, and how the employer is going to be responding to that.”

HR’s role in helping managers deal with flexibility requests

The starting point would be to consider how the flexible work arrangement would look if it could be accommodated, she says. It should also include consideration of the impact on the person's ability to perform their role and on the team.

If, ultimately it's not feasible, rather than starting from a place of refusal, the employer can demonstrate that every effort was made or that maybe a compromise could be found.

“We are seeing a lot of requests for flexibility, particularly from staff who maybe joined an organization during COVID, and there's a tension as the employer starts to try and return to what they see as normalcy,” says King.

For those situations where it’s not possible to accommodate a request for flexible working, it’s important to be prepared to demonstrate to the Commission why that is the case.

One tip King offers, among others she will share at HRD’s upcoming Employment Law Masterclass Sydney, is for HR practitioners to encourage managers “to really think through and articulate why they want someone to work in a particular way. They can also help the manager think creatively about what is possible.”

Flexibility’s impact on team cohesion and collaboration

One justifiable reason for requiring someone to work in an office could be team cohesion and collaboration but, she says, consideration needs to be given to whether this is necessary five days a week.

“When an employer says, ‘No, we need our people in the office’ it’s important to document why,” says King. This includes keeping records about the kind of work people are doing that can provide evidence as to why the organisation needs a particular way of working and being prepared to explain that and defend that.

King offers advice on ways of overcoming potential tension around this: “Employers could look at different ways of structuring a team so there are one or two anchor days when people are together in the workplace, but otherwise working remotely. Or if an organisation is going to have mandated time together in the workplace, are you making sure that on those days, you're actually all having meetings together or talking to each other, not just being in the office on Zoom calls.”

Consequence of denying flexibility without careful consideration

There are organisations requiring RTO five days a week with no bargaining opportunity, says King, but there could be consequences.

“One risk of this is a legal consequence - ending up being arbitrated in the Commission or a discrimination claim; for example, if someone requests flexibility because they have a disability and there's no preparedness to consider that. The other practical point is that unemployment is still really low in Australia and employees can go elsewhere.

“We know of clients who have employees saying, ‘Give me the flexibility I want or I’m leaving’ and turnover is costly.”

Details of flexibility should be clearly outlined

Employers receiving a flexibility request should make sure the terms of what's being requested are really clear, says King.

“Rather than just ‘working from home’, the employee should be saying what hours they will be available, so that everybody knows what’s actually being requested.”

Once an agreement has been made, documentation is crucial and can help minimise disputes down the track, she says.

“Often, we would recommend a separate flexibility agreement so the employee, manager and HR team are all clear about what’s been agreed.

“It can be something in a contract but, importantly, it will be the emails or letters between the employee and the employer about how this is all covered out; so a copy of the request, a copy of the response to the request - which you're required to keep - and a copy of some kind of internal documentation about how this position has been arrived at.”

The process is very similar to the way that HR practitioners would be used to keeping documentation about redundancy decisions.

The benefits to the employer are clear, she says, not just around retention but also engagement. “Staff engagement is typically higher when employees feel they have the preparedness from their employer to support them.”