Opinion: considerations for employers when employees want to continue to work from home after lockdown

As the COVID-19 lockdown hit and New Zealand morphed into what felt like a scene from an apocalyptic movie, employees retreated home, via a “grab and dash” for stationary, laptops and oversized televisions.

Many employees got used to working from home and claimed the benefits went beyond ease of access to the fridge, or the chance to lounge around in pyjamas and call clients from a new four posted, duvet covered ‘office’.  Many employees felt they were both more productive and, due to the absence of a commute and with lunchtime at home, could in theory attain a semblance of the much rumoured, much coveted ‘work/life balance’.

The lockdown has opened the eyes of some reluctant employers to the fact that allowing flexible working from home arrangements does not necessarily mean a reduction in productivity and it can work well.

Variation of terms of employment

To assist employees adjust back to work after lockdown, some employers have allowed some employees to continue to work from home to varying degrees. The employers in these instances have acted in good faith by allowing some ongoing freedom and flexibility for employees to help them and their families ease back into things.  However, employers need to turn their minds to whether this is a temporary arrangement or whether they are happy for it to continue in the long term and need to ensure their employees are on the same page as them.

The risk is that if employers do not communicate clearly with employees about what the position is going forward, there may come a point (a few months down the track) where an employee may be able to point to the ongoing nature of this arrangement and say it has become the ‘new normal’. Or in other words, that the terms of employment have been permanently varied by conduct or the new arrangement is an implied term of the employment agreement.

To avoid this, we recommend that where employers allow ongoing flexible working, they make clear in written communication to staff that:

• They are prepared to allow employees to work from home over the next [x] weeks or months, as applicable; but
• The arrangement is temporary, or a trial, and there can be no expectation that it will necessarily continue
• The employer needs to assess the impact on productivity, along with other factors, including client-facing needs and the value of face-to-face in-person interaction with colleagues; and
• They will review the arrangement and will announce in [x] weeks or months if the arrangement is to either come to an end or continue for another [x] weeks or months, before being reviewed again.

Another more obvious option of-course is to require employees to return to the workplace now, but that blanket approach is problematic, as employers must consider individual circumstances in good faith.

Formal flexible working requests

Another layer to consider is the separate scenario where an employee makes a formal request for flexible working arrangements under Part 6AA of the Employment Relations Act 2000 (Act).  There are strict requirements to follow in that event, but in our view there is still scope for employers to take a similar approach to the above and agree to the request on a trial basis, assessed against the permitted grounds of refusal under the Act, including impact on quality, performance and/or ability to meet customer demand.

Workplace Law team

Employment: Andrew Shaw, Fiona McMillan, Gwen Drewitt, Maria Green,  Hannah Martin, Joseph Harrop, Holly Struckman, Alex Beal, Giuliana Petronelli, Ana Fruean, Elise Wilson, Abby Shieh
Immigration: Mark Williams, Rachael Mason, Daniel Kruger, Nicky Robertson, Julia Strickett, Ken Huang, Mary Zhou, Shi Sheng Cai (Shoosh), Sarah Kirkwood, Janeske Schutte, Sati Ravichandiren, Lingbo Yu
ACC: Andrew Shaw
Health and Safety: Andrew Shaw, Fiona McMillan