Working from home: 'Flexibility regret' vs long-term arrangements
RNZ
Employees with casual agreements to work from home may still have a case for not coming into the office, despite a recent employment ruling on the issue, but employers are also showing signs of "flexibility regret".
The Employment Relations Authority (ERA) recently ruled against a worker who took a constructive dismissal case against their employer where they were ordered back into the office three days a week, when they had been working from home four out of five days.
The authority found the worker was not unjustifiably disadvantaged or constructively dismissed because there was no permanent arrangement, so there was no duty to continue it.
Meanwhile the PSA is still waiting for an ERA hearing over the government's directive that work from home for public servants is not a right and should not compromise performance.
But James Cowan, an employment lawyer at Anderson Lloyd, told Checkpoint that workers with a casual arrangement to work from home should not be particularly worried about the recent ERA ruling.
"If it is something they want to get formalised, then I would suggest that they might be wanting to speak to their employers to get it put into writing or at least more formally agreed.
"Where it has been discretionary or perhaps more informally agreed, then many times in that situation an employer is just going to be able to say 'actually, we would like you to come back to the office now, and either we're giving you a direction to do so or we're going to talk to you about agreeing how many days you'll be back in the office each week'."
He said employers who have had a casual agreement for years could still argue their arrangement had been formalised through custom and practice.
"By the time it has become an arrangement, the employee there would have a good argument that this has gone beyond being something informal, it has actually ben formalised by that time period."
If it needed to be put in writing, Cowan said it would be safest for employees to be as specific as possible.
"If employees and employers sit down and say lets agree a framework, lets agree how many days you'll be in the office, how many days you're at home.
"It doesn't necessarily have to be the set days of the week, but you would want to get a level of detail there so that both parties knew what was happening."
But Cowan did warn workers that his firm was fielding more inquiries from employers over whether they could direct their employes to work from the office.
"I think some of that might be called 'flexibility regret' where some flexibility on working from home has been agreed, particularly post-Covid, and maybe some employers feel the dial has shifted too far."
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