The COVID-19 pandemic has fundamentally changed the way many of us work and has shown that working from home can work effectively depending on the nature of the job. Some employers are starting to require their employees to return to the office permanently, or on a hybrid working basis and we have started to see an increase in flexible work request enquires as a result.
One of the most common ways employees are seeking to have that flexibility is to request a hybrid working arrangement, where part of their weeks is at home and the remaining time in the office. Often these requests will be informal arrangements between employees and their employers. However, employees are now seeking formal variations to their working arrangements and making request for flexible working arrangements under Part 6AA of the Employment Relations Act 2000 (“the Act”).
Employee requests for flexible work
A flexible work request gives an employee the legal right to ask for a flexible working arrangement in writing. Where this occurs, then an employer has a legal duty to consider their request and respond in writing within one month of the date of the request.
Where an employer agrees to this type of request, then it will be a permanent variation to the terms and conditions of an employee’s employment, unless specifically agreed otherwise, i.e. a temporary trial that is time-limited.
Declining an employee request for flexible work
Where an employer declines this type of request, then it must be based on one of the recognised business grounds, or non-accommodation grounds in the Act. These are as follows:
Cannot reorganise work among existing staff
Cannot recruit additional staff
Negative impact on quality
Negative impact on performance
Not enough work during the periods the employee proposes to work
Planned structural changes
Burden of additional costs
Negative effect on ability to meet customer demand; OR
Where a request is inconsistent with the terms of any collective employment agreement.
An employer must explain the specific reasoning behind whichever one of the above grounds it chooses to rely on to decline an employee’s flexible working request. It is not enough to simply cite one of the grounds as the reason to decline an employee’s request, so it is important that employers give careful consideration to these type of requests before responding to them and make sure their reasoning is sufficiently explained to the employee.
Employees have the option of making a formal complaint to the Labour Inspectorate if they think their employer has not followed the correct process for notifying them of their decision, but they cannot take action because their employer has refused their request, or they disagree with the ground that has been given.
The Labour Inspectorate can assist the parties to resolve the issues and make recommendations. If the parties cannot resolve the issues between themselves then the employee can apply for mediation or to the Employment Relations Authority, which can impose a penalty of up to $2000 against an employer if it failed to follow the correct process in terms of notifying the employee of its decision.
Key takeaways in light of COVID-19
We have seen over the past two years employees and employers adapt their business and working environment. When managing these requests, you should consider not only the impact it may or may not have on the business, but the long term impacts it could have on employee fulfilment and retention. In the current employment climate, attracting and retaining employees is a significant challenge for employers. Flexibility in working arrangements is an attractive quality for potential candidates and a positive retention tool for employers.
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