Is working from home still working?

There are conflicting views on whether working from home is effective. Research conducted by Massey University at the end of 2023 found that around 40% of workers were doing hybrid work. This was an increase from previous years.

Earlier this year we have seen some high-profile instances of employers, including One NZ, proposing that their employees return to work from the office, or at least that the balance between office days versus home days be readjusted.

Some employees consider that they are more productive, and experience greater job satisfaction when working at home (which the Massey University research confirmed). Detractors, however, say that remote working has a myriad of problems such as blurring the line between ‘work’ and ‘life’ which can lead to burnout, low visibility, less collaboration between workers, social isolation or disconnection, and, of course, the temptations of home that can be distracting.

The ‘sweet spot’ for hybrid working will obviously vary significantly from business to business, depending on how it operates and what the business’ needs are, not to mention that what works for one employee may be different for another. It is also possible that what works best now will be different from a few years ago, and it is to be expected that businesses will be continually reassessing this.

Can employers require employees to return to the office?

The enquiry starts with what the employment agreement says. Under section 65 of the Employment Relations Act 2000 (the Act), every individual employment agreement should specify where the employee is to perform the work. Does your clause reference the work address, the employee’s home address, or a combination of both? Or does it just say a region, like in the Auckland area – which could capture both work and home locations? Is there flexibility in the location clause? Can the clause be varied at the employer’s discretion or is the employee’s agreement required? 

It is also prudent to check if employment agreements were varied during the COVID-19 pandemic to reflect that employees were working remotely, and also any relevant employer policies.

If, after reviewing the documents, you are still unsure whether an employment agreement has been or can be varied, or whether the employer can decide where the work is to be performed, it is best to seek specialist employment law advice.

What about where an employee requests to work remotely?

Employees have a statutory right to make a request for flexible working arrangements at any time, under section 69AAB of the Act. Requests can cover any aspect of the working arrangement, including the location of work.

The Act is quite prescriptive as to how requests for flexible working should be made. It is important that requests are made in accordance with the Act, so as to trigger an employer’s duties in respect of requests. For example, requests must be made in writing, and specify details including whether the variation sought would be permanent or for a period of time.

Employers must then deal with the request as soon as possible (but not later than one month after receiving it) and notify the employee in writing of their decision and why. Employers do not have to accept a request, but any refusal must be based on one of the specific grounds set out in the Act, such as detrimental impact on performance or the burden of additional costs.

It is important to note that employers are required by the Act to refuse a request where an employee is bound by a collective agreement, the request relates to working arrangements to which the collective agreement applies, and the request would be inconsistent with the collective agreement.

What are the legal considerations for employees working from home?

It is also important to note that the Health and Safety at Work Act 2015 applies even where employees are working remotely or from home.

Primarily, employers are still required to ensure the health and safety of workers, so far as is reasonably practicable, and workers are still required to take reasonable care to keep themselves safe and healthy.

This means that both employers and employees should consider points such as whether they have an appropriate at-home workstation, whether employees are receiving sufficient support and check-ins when working remotely and that employees are taking appropriate breaks. Please follow the hyperlink if you would like to read our more detailed comments on legal considerations for remote working.

If you have any questions about working from home and what employers and employees can or cannot do, please get in touch with our Employment Law Team or your usual contact at Hesketh Henry.

Disclaimer:  The information contained in this article is current at the date of publishing and is of a general nature.  It should be used as a guide only and not as a substitute for obtaining legal advice.  Specific legal advice should be sought where required.

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Media contact - Kerry Browne
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