The Government says it expects to see more public servants returning to the office each day. Earlier this year, Anna Murray asked an employment lawyer what rights people have when it comes to working from home. Here’s what she learned.
This story was originally published on January 18, 2024.
Working from home has become the norm for many people since Covid-19 reached our shores in 2020.
But as we move further away from the pandemic’s peak, there are international predictions businesses in 2024 will expect employees to spend more time at the office than they may have done over the past few years.
That very issue is currently playing out at One NZ (formerly Vodafone), where some call centre employees are protesting a proposal to work at the office three days a week — one day more than they had been doing.
Anecdotal evidence suggests more New Zealand employers are weighing up flexible work arrangements, said BusinessNZ advocacy director Catherine Beard.
“I think [employers] are talking about the pros and cons of the flexible approach to where you work,” she said.
However, the hybrid work model — where people split their time between working from home and working at the office — is still firmly bedded in, especially in the current tighter job market, Beard said.
“There have been a lot of challenges getting staff over the last five years,” she said.
Offering flexible work arrangements is still key to recruiting staff in that environment.
“In a tight job market, which is pretty competitive, employees will shop around and they’ll find the business that suits them the best, and it’s not just salary, it’s quality of life and work-life balance and all those kinds of things,” Beard said.
“[But] that may change a bit… if unemployment starts to increase.”
After pioneering on the working from home space with more than a thousand remote employees in early March 2020, One NZ is calling staff back to the office at least three days a week. (Source: 1News)
So, what if you’re told to come back to the office?
The first thing people should do when it comes to directives about where they work is to look at their employment agreement, said Jim Roberts, employment law partner at Hesketh Henry.
“Every individual employment agreement is meant to have a location of work in it,” he said.
“And if it says you’ve got to turn up at [the business address], you’ve pretty much got to turn up at [that address].”
Collective agreements often won’t have a location because they usually cover multiple employer locations.
Roberts said when the Covid-19 pandemic began, many people had no choice but to work from home, with employers having to adapt very quickly to the lockdown circumstances.
He said individual employment agreements probably weren’t formally varied to reflect those circumstances.
“Some employers did vary locations [in employment contracts] to take into account working from home [but] others haven’t.”
But Roberts points out that under the Employment Relations Act, people have the right to ask their employer for flexible working arrangements at any time.
This request must be made in writing, setting out the proposed changes to working arrangements and whether they want those changes to be permanent or temporary.
The employer has to respond to that request as soon as possible, also in writing. They can refuse the request on the basis of several grounds specified in the Act. This includes negative effects on work performance or quality or an inability to reorganise work amongst existing staff.
Employers must refuse the request if it comes from someone bound by a collective agreement, and approving the request would be inconsistent with the collective agreement.
Navigating the way forward
The Covid years mean some people think they now have the right to work from home forever, Roberts said.
“And that’s not quite right. It’s also not necessarily wrong, depending on what’s in their employment agreement or [if they have requested] flexible working.”
Roberts believes both employers and employees should proceed with caution when it comes to navigating the future of flexible work arrangements.
“There isn’t an inherent right to work from home,” he said.
“From an employer perspective, an employer could make a reasonable argument, even if they’ve documented very little, that [staff working from home] was a contingency, [that] it was about Covid, it was about saving jobs and it was temporary, that [they] never, ever thought [they] were entering into an arrangement where a person can elect to work from home forever.”
But Roberts said businesses should be cautious with any directives.
“If an employer is turning around and saying, ‘Right, as from 8am tomorrow, everybody’s got to be back in the workplace,’ I’d be saying, ‘Careful… there’s a process you need to work through.'”
Hybrid working here to stay?
Whatever happens in 2024, both Beard and Roberts think the way people work has likely changed permanently.
Roberts said he can’t see the country heading back to what work life looked like prior to the pandemic.
“I think businesses that expect getting 100% of people to return to work, unless it’s something that requires people to physically be at work like a manufacturing environment, I just think it’s going to be a stretch. It’s going to be a recruitment stretch and a retention of staff issue.”
Beard said working from home has its advantages.
“[It’s] hugely beneficial to keeping people in the workforce because it gives them that flexibility when their children are small,” she said.
But she added that other people might benefit more from being in the office, depending on their stage of life.
“One category of worker who probably needs to be in the workplace would be people that are new to the workforce because they stand to get quite a lot of mentoring and support and being able to learn the business and the culture in the office.”
If employers do want to get people back in the office more, good communication will be key, Beard said.
Others, depending on the size of the business, may look to incentivise coming to work.
“We’ve heard through the grapevine that some law firms, for example, might put on lunch for employees and other things that make it attractive to come into the office,” she said.
But, ultimately, it all comes down to negotiation, Beard said.
“If people are valuable employees and the employer can see that there are good reasons for them to have some flexibility… then I think employers will be prepared to be flexible.”
