By Susan Hornsby-Geluk, General Editor, Employment Law Bulletin

This article originally appeared on and is reproduced with permission by the author.

OPINION: Over the past few months, New Zealanders have had a crash course in flexible working arrangements.

With little time to trial how this may work, employers and employees have had to adapt very quickly and embrace new ways of working.

This has meant significant changes to where, when and how we work.

Whilst many employers were initially concerned about whether employees would be as productive working from home, the general consensus is that this compulsory experiment has been a surprising success.

Many employees have enjoyed working from home so much that they have expressed reluctance about returning to the office. Others are understandably anxious about returning to the workplace and would prefer to continue working from home on an ongoing basis.

This raises the question as to whether New Zealand will now use this as an opportunity to move away from traditional working arrangements, and towards a model that allows greater flexibility and tailoring for individual circumstances.

Prime Minister Jacinda Ardern has recently endorsed alternative ways of working, encouraging employers to consider a 4 day working week.

In a Facebook video she said, “there’s just so much we’ve learned about… [the flexibility] of people working from home, the productivity that can be driven out of that”.

Despite this, there is a natural inclination for employers to want to see their employees at work and know what they are doing. Not all employers will be enthusiastic about their employees’ requests to work from home or change their hours of work.

So, what, if any, rights do employees have in this situation?

The Employment Relations Act provides a mechanism for employees to request permanent or temporary changes to their working arrangements. Such requests may be for changes to the number of hours of work, the days of work, start and finish times, and where the work is performed.

Where an employee wants to make a formal request, they must do so in writing and must specify the proposed changes, the date upon which those changes would commence and the period of time the employee is seeking to work those alternative arrangements.

When an employer receives a formal request, they are required to notify the employee in writing of their decision, as soon as possible, and no later than one month after receiving it. If the request is declined the employer must set out the reasons for this and the grounds for refusal.

There are specified grounds for refusal in the Act which include the inability to reorganise work amongst existing staff, detrimental impact on quality or performance, insufficiency of work during the periods that the employee wants to work, the burden of additional cost and the detrimental effect on ability to meet customer demand.

Whilst the employer is required to consider and respond to requests for flexible working arrangements under the Act, as long as they do this, an employee cannot challenge their employer’s refusal to agree to a request. In other words, as long as the employer follows the procedural requirements the Employment Relations Authority will not scrutinise their decision making.

In short, therefore, an employer cannot be compelled to agree to flexible working arrangements if they consider it may adversely impact their business. Further, in this situation, employees cannot insist on working from home or refuse to attend the workplace.

However, putting to one side the legal rights and obligations, one would expect that in the post lockdown world there will be a greater willingness to embrace flexible working arrangements. This is likely to become an expectation on the part of employees and a factor in their thinking about whether to accept particular employment opportunities.

For employers it should also be seen as a benefit that can be offered to attract and retain good staff.

This will create other issues that will need to be properly managed, including health and safety obligations. In this regard if working from home becomes a permanent arrangement, employers will be bound under the Health and Safety at Work Act to ensure that the “home office” is a safe one.

Consideration will also need to be given to whether the employer will contribute to additional costs incurred by the employee as a result of working from home, including heating and internet.  However, these things should not create insurmountable obstacles.

During the lockdown, employees who were working from home appeared to be willing to go the extra mile to make the best of the situation. This is likely to have been driven by a range of motivations including loyalty to their employer and an awareness that everyone had to pull together to keep the waka afloat in very difficult business conditions.

Coming out of lockdown, the willingness of employers to accommodate flexible working arrangements on an ongoing basis will depend on employees continuing to demonstrate this same commitment and on showing that the arrangement is genuinely a “win-win”.

- Susan Hornsby-Geluk is a partner at Dundas Street Employment Lawyers.