Flexible working under the spotlight

The laws governing flexible working arrangements are under the spotlight following a recent top-down Government directive for public servants to work from their workplaces.

Finance Minister Nicola Willis has asked public sector department bosses to “tighten up on working-from-home arrangements,” stating that working from home arrangements are not an entitlement.

However, when a formal flexible working request is correctly made, the grounds for refusing this are relatively narrow in scope and clearly set out in the Employment Relations Act 2000. As such, it will be interesting to see how different departments and agencies reconcile their obligations under the Act with the Finance Minister’s broad directions.

Flexible working requests

Since 2008, the Act’s Part 6AA Flexible working has reserved an employee’s right to request a variation of their working arrangements. This includes not only working from home arrangements, but also their hours of work and days of work.

Requests for different working arrangements must be in writing, state the employee’s name and date of the request and invoke Part 6AA. An employee must also specify what variation is sought, whether this is permanent or for how long it is requested, and explain what changes they think an employer might need to make to accommodate this.

Section 69AAF of the Act states that an employer may only refuse a flexible working request if it cannot be accommodated on specified grounds focused on the employer’s work capacities.

These include inter alia – an inability to reorganise work among existing staff or detrimental impact on quality or performance. Where they focus on an employer’s inability to accommodate the request, necessarily, an employer’s focus is not directly on the benefits it, or other businesses have, by having a worker in the office. An employer is also obliged to refuse requests based on inconsistency with an employee’s collective agreement.

Failing one or more of these specified grounds applying an employee is entitled to have their flexible working request approved.

An employer must address the request and communicate its decision in writing as soon as possible, but not later than one month from receipt.

Refusing a flexible work request

If the request is refused, an employer must state:

• The refusal is based on a ground specified in s. 69AAF(2) or (3).
• Which ground of refusal is relied on.
• The reasoning for this.

If an employer does not meet these procedural requirements, it exposes itself to liability for a penalty of up to $2,000 payable to the employee, should the matter be elevated to the Employment Relations Authority.

An employee also has a limited ability to challenge a flexible working decision if they believe their employer has either not followed the correct process for dealing with a flexible working request or incorrectly assessed eligibility.

If this challenge is made, unlike a personal grievance, the matter first goes to a labour inspector to attempt resolution, and failing that, to mediation.

Return to office benefits

In her announcement, Willis referenced both the benefit of working in the same space and concerns over lack of productivity. She also highlighted the positive flow-on economic effects on the retail and hospitality sector by requiring the return of workers to the vicinity. Further, it was indicated that if someone could work from the office, they should.

However, as we’ve outlined above, when a formal flexible working request is correctly made, the grounds for refusing this are relatively narrow in scope and clearly set out in the Act. If these are not applicable, then an employee is entitled to have their request approved. Some employees will also have negotiated and agreed with the employer the right to work flexibly, in which case the arrangement can only be varied by agreement.

Helena Scholes is a Senior Solicitor on the Employment Law Team at Lane Neave in Wellington. Gwen Drewitt is a Special Counsel on the Employment Law Team at Lane Neave in Christchurch. Fiona McMillan is a partner on the Employment Law Team at Lane Neave in Auckland. Andy Bell is a partner at Lane Neave in Wellington, specialising in employment law and relationship property. Andrew Shaw is the managing partner and head of the Employment Law Team at Lane Neave in Christchurch.