Flexible Working – When to say yes or no

May, 2022

By: Bethany Shepherd

Graduate Solicitor, EMA Legal Services

Navigating the COVID-19 pandemic and its aftermath is a big challenge for employers. Considering the recent changes to the COVID Protection Framework, employers are beginning to bring employees back to the office fulltime. While some employees may welcome a return to the office, others are less excited at the prospect of having to return to the workplace and what that means for their work-life balance.

Hybrid Working Arrangements

For the past two years, employers and employees have had to adapt to new ways of working. For most office staff, this meant working from home. But we are seeing more employers wanting their employees to return to the office on a permanent basis. But after two years, employees have adjusted to the flexibility of working from home, and many are pushing back to guarantee some flexibility.

One of the most common ways employees are seeking to retain flexibility is to request a hybrid working arrangement, where part of their week 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 some are making requests for flexible working arrangements under Part 6AA of the Employment Relations Act 2000.

How to Manage Employee Requests for Flexible Work

Employees do not need a special reason to make a request for a flexible working arrangement. They can make the request for any reason, and as the employer, you have a ‘duty to consider’ those requests.

The law sets out the expectations on how you must manage these requests:

  • As an employer, you must think carefully about each request and reply in writing
  • You must reply, at the latest, before one month has passed since the request
  • While you do not necessarily have to agree to the employee’s request, if you decline, you need to explain to the employee why you are doing so in writing; and
  • There is a good faith responsibility to work and compromise with the employee if you are able to do so, and if the business can manage such an arrangement

Declining an Employee Request for Flexible Work

There will always be circumstances where, due to the needs of the business, you will be unable to accept a request for flexible working arrangements. You can refuse a request from your employees for flexible work if there is a ‘recognised business ground’ for doing so, or if it conflicts with a collective agreement.

Recognised business grounds include:

  • An inability to reorganise work among staff
  • An 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, or
  • A detrimental effect on ability to meet customer demand

This needs to be clearly communicated to the employee in question, with a business rationale for why their flexible working arrangement cannot be accommodated. This letter should be specific to the employee and their request.

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 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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