Flexible working arrangements have become a familiar occurrence in the wake of Covid-19.

Many employers are unaware, however, that current employment laws provide a legal entitlement for employees to request a variation of working arrangements, and restrict the employer’s ability to decline such requests.

Employees have a right to request to work from home

Employees have a statutory right to request a variation to their working arrangements (which includes their place of work) at any time.[1]

Any request to work from home must be in writing and include the following details:[2]

1. The name of the employee;
2. The date which the request is made;
3. That the request is made under Part 6AA of the Employment Relations Act 2000;
4. Whether the request is permanent or temporary;
5. The period of time that the employee wishes to work from home; and
6. If any arrangements of the employer need to be made as a result of the work from home request.

Employers can decline requests to work from home, on specified grounds

Employers are legally required to respond to requests to work from home (or any other request to vary working arrangements) as soon as possible, and no later than one month after the request was received.

Employers are able to decline requests to work from home if they determine that the request cannot be accommodated on one of the following grounds:[3]

• 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; or
• Detrimental effect on ability to meet customer demand.

If an employer declines a request to work from home, they must notify the employee by stating the ground(s) for refusal (from those listed above) and explaining the reasons for that ground.

If an employer does not follow these requirements when dealing with a flexible working request, then the employee can make an application to the Employment Relations Authority, and the employer may be liable for a penalty up to $2,000, payable to the employee.

Other considerations relevant to flexible working arrangements

Permanent or Temporary Arrangements

Employers should carefully consider whether requests for flexible working arrangements are permanent or temporary. It may be important for employers to consider the ongoing effect of employees working from home on a permanent basis, compared to a temporary basis. An employee working from home for a few days on the odd occasion may have a lesser impact on a business than an employee permanently working from home one day every week. This will vary between different industries and businesses but is a relevant consideration for all employers.

Employers should also consider whether granting a request to work from home for one employee would set a precedent for other employees in the same circumstances.

Workplace Health and Safety

If any employee is working from home on a regular or permanent basis, it will be important for employers to consider the health and safety of their “workplace”.

The Health and Safety at Work Act 2015 continues to apply to any “place where work is being carried out, or is customarily carried out, for a business or undertaking”.[4] Therefore, employers should consider carefully whether their employees’ homes constitute a ‘workplace’ under the Health and Safety at Work Act. If so, then employers will owe those employees a duty to ensure (as far as reasonably practicable) their health and safety at home also.[5]

Employers owe a duty to their employees to minimise hazards and health and safety risks in the workplace so far as reasonably practicable.[6] Therefore, employers would need to assess the potential health and safety risks of their employees working from home on a usual basis.

Understandably, employers have much less control over the environment their employees are working in when they are working from home. However, some steps to reduce hazards may include confirming that employee working arrangements and set ups are ergonomically safe.  

Security of information

Employers may also want to consider how their employees access work files from home. It will be important to have safety measures in place to protect confidential work files, when they are being accessed by a personal device from a location other than the work offices. For example, this could be using a VPN and secure remote desktop software to access the workplace network.

Summary

Employers must consider and respond to employee work from home requests as soon as possible, and within one month at the latest. Employers can decline work from home requests if one or more of the specific grounds set out in the Employment Relations Act apply.

There several other matters employers should consider when they receive work from home requests (or if they already have employees working from home), including health and safety and security of business information.

Employers that receive a work-from-home request (or other flexible working request) must deal with that request promptly.  The employer’s response should reflect the specific legal requirements as well as any other relevant considerations, and if the employer has any uncertainty on those issues then seek legal assistance.

Disclaimer

This article is provided to assist clients to identify legal issues on which they should seek legal advice, and by its nature cannot be comprehensive and cannot be relied on as advice. Please consult the professional staff of Clendons for advice specific to your situation.