Being flexible about flexible working in 2023

Legal considerations, best practices for flexible arrangements

BY Kirsty Wallace 10 Jun 2023

Whether you call it flexi, hybrid, or remote working, now that people are generally less worried about Covid-19 should employers still bother to implement and support this process? Below we discuss some of the benefits to including this as a staple in your organisational structure.

Successful flexi / hybrid / remote working situations require mutual trust, with the employer treating the employee like an adult and the employee acknowledging that the employer’s business needs to operate efficiently. We’re all different and naturally want different things – what works for one employee or business will not necessarily work for another. For example, I work from home (WFH) twice a week and use this time to meet clients locally and exercise in lieu of my morning commute. Some of my colleagues prefer not to WFH at all. Either way, both arrangements can work well.

So, what does flexi / hybrid / remote work look like?

That is up to the employer and the employee but can include flexi time, a compressed week (such as a four-day work week), WFH, hybrid (generally a mixture of being in the office and at home and includes an expectation to be in the office for an agreed amount of time), job sharing, gradual retirement, paid study leave, transition arrangements (such as a part-timer gradually transitioning to full-time) and can encompass testing a flexi-work arrangement before it’s permanent.

Nearly three-quarters of workers would choose a job over a similar one if it offered flexible working, according to a global survey.

Benefits of flexible work

Australia’s Workplace Gender Equality Agency (WGEA) published an article in 2019 called “Flexible Working is Good for Business.” It found:

“Access to flexible working is clearly linked to:

Improved organisational productivity.
An enhanced ability to attract and retain employees.
Improved employee wellbeing.
An increased proportion of women in leadership.
Future-proofing the workplace.

Family- and caring-friendly working policies are likely to boost the number of female employees in the workplace. There is a harmful assumption in the workforce that women’s priorities change once they have children and that they become less engaged with work…Contrary to this myth, research shows that women who work flexibly are just as ambitious as their colleagues.”

Need further convincing? Flexi / hybrid / remote working can also:

Improve health, loyalty, and stress levels for employees, as well as productivity and engagement. You may have read about the success of four-day working week trials both here and overseas. These have been backed up by studies supporting the practice, with one report claiming that 92 per cent of companies involved in a trial in the UK wanted to continue with the practice and a major NZ trial resulting in absenteeism dropping by 34 per cent with the majority of staff feeling more engaged.
Improve employer brand: demonstrates empathy, a better place to work, and builds trust. Offering staff flexibility means allowing them to work in ways that fit in with their outside life.
Lead to efficiencies with the use of facilities, equipment and fuel.

Why and when do flexi arrangements fail?

Flexi arrangements can never be a “one-size-fits all” arrangement. They can fail when:

The employer doesn’t have an adequate flexi working policy. Clarity helps!
The organisation isn’t clear that flexibility arrangements are agreed to on a case-by-case basis, leading to an expectation that an arrangement that is approved for one employee will be approved for another.
Insufficient level of trust and respect between employer and employee (an employment relationship is a two-way street, after all).

The number of job postings offering hybrid work increased by more than half in 2022, a survey found.

What does the law say?

Part 6AA of the Employment Relations Act 2000 provides a mechanism by which employees can make a formal request for a flexible working arrangement.

Grounds for the refusal of a request are found in section 69AAF; an employer must respond to requests within a month (but preferably as soon as possible) and can only refuse on these specified grounds:

inability to reorganise work among existing staff
inability to recruit additional staff
detrimental impact on quality
detrimental impact on performance
insufficiency of work during the periods the employee proposes to work
planned structural changes
burden of additional costs
detrimental effect on ability to meet customer demand.

An employee’s request must be genuinely considered and in good faith.

Best practices for flexible work

There are a couple of things to think about.

First, do you (or should you) have a flexible work arrangement policy for your organisation? If you already have one, when was the last time it was reviewed?

Secondly, there are health and safety obligations for employers who have employees working from home. As an employer, you will have to take reasonably practicable steps to ensure your employees’ health and safety at work, which includes home offices.

Consider doing a risk assessment assessing physical and mental health. This could include things like the ergonomics of the workstation setup, fire safety equipment, and first aid kits; expectations around regular communications (who is covering internet costs?) and check ins to maintain social connection.

Thirdly, consider the privacy of your employees – this is where mutual trust becomes important. An employer can only monitor employee productivity where it reasonable to do so. It’s fair to request a summary at the end of the week about what projects/work an employee has been involved in but it’s not fair to install a program in the computer that monitors their IT use at all times. Again, act in good faith and consider an employee’s privacy concerns if they are raised.

Almost all HR leaders are keen on pushing for remote work arrangements to continue after the pandemic, according to a global survey.

All in all, there is a lot of really good things about flexible work arrangements and they can be great for employers and employees alike. Ultimately, it comes down to those constant employment law principles of good faith and mutual trust and confidence.

Kirsty Wallace is a senior associate specialising in employment law at Duncan Cotterill in Wellington.