Employers
Responding to a flexible working request
If an employee requests flexible working arrangements, you must consider the request in good faith and reply in writing within 1 month. You can only decline a request for certain reasons.
Employees can request flexible work arrangements
Employees have the right to request flexible working arrangements any time and for any reason. You have a 'duty to consider' the request.
You must:
- consider each request fairly, in good faith
- reply in writing as soon as possible — no later than 1 month after the request is made (this can be extended if you and the employee agree to a trial period after they make the request)
- only say 'no' for certain reasons (the recognised business grounds or non-accommodation grounds listed below) — these reasons need to be stated if the application is declined.
Suggesting a trial period
You can agree to a trial informally before the employee submits their written request. You should document the trial in writing.
If the request has already been submitted and you and your employee agree to a trial, you have agreed to an extension of time for you to make your final decision. This should be recorded in writing, including start and end dates and any changes to the employee's salary.
Responding to a request for flexible work arrangements
You must deal with a request as soon as possible, but no later than 1 month after you receive it. You must respond in writing. A process for how to consider a request is set out below.
Step 1: Acknowledge the request
You should let your employee know that you have received their request.
If there's information missing from the request, let the employee know and ask them to re-submit the request. You do not need to reply to the request until you've received the missing information.
Step 2: Consider the request
When you have considered the employee's request, it's good to meet with them to discuss options, for example, a potential start date, a trial period, or the reasons you may not be able to agree to the request.
Things to think about
- What will the impact be on other employees, and how will you manage it?
- Would the new working arrangement mean that you need to change your employee’s pay?
- What will the impact on holidays and leave be?
- Will health and safety requirements still be satisfied under the new arrangement — for example, if the employee is going to be working from another location or alone out of core business hours?
- Would you need to make new arrangements for employee supervision and performance management?
- Do you already have a policy on the flexible work options being discussed?
- Do you need to inform others in your organisation about the new working arrangement, for example, other employees and human resources?
Step 3: Make your decision
Decide if you will accept or decline the employee's request.
You can only decline a request:
- on 1 or more of the recognised business grounds shown below, or
- if it conflicts with a collective agreement.
Recognised business grounds or non-accommodation grounds
The following are reasons that you can lawfully decline a request for a flexible working arrangement.
- Cannot reorganise work among existing employees.
- Cannot recruit additional employees.
- Negative impact on quality.
- Negative impact on performance.
- Not enough work during the periods the employee proposes to work.
- Planned structural changes.
- Burden of additional costs.
- Negative effect on ability to meet customer demand.
Conflicts with a collective agreement
You must decline a request if the proposed new working arrangement conflicts with the provisions of an employee’s collective agreement.
However, there may be times where you can reach a compromise with your employee making the request, and other employees in the workplace. Employers, employees and unions are encouraged to discuss these issues with a view to developing procedures for dealing with these conflicts before they come up.
Step 4: Confirm your decision in writing
Once you’ve considered your employee’s request for flexible working arrangements, you must let them know your decision in writing. If you are declining their request, you must let them know the reason.
If you approve the request
Unless you have agreed to a trial or a set period for the change, the new working arrangement should be recorded in writing, for example, in the employee's employment agreement.
If you decline the flexible work request
When declining a request, you must:
- state the grounds for your refusal, and
- explain the reasons for these grounds.
While you must provide your decision in writing, if you are going to decline the request, talking to your employee about it and then giving them the letter might help them understand your decision.
A manager in a small firm that manufactures curtains gets a request from an employee to not work on Thursdays. The manager declines the request as the weekly fabric delivery is received on Thursday and preparations begin for the following day’s dispatch of customer orders.
Dear Bill,
I am sorry that I cannot grant your request to change the days that you work, but to allow you to not work on a Thursday would have a negative effect on the performance of the business.
Thursday is our busiest day of the week, when all employees are required to ensure that the machinists can continue making curtains while stock is received, and finished curtains are packaged ready to be dispatched the following morning.
You are aware that on a Thursday morning we receive our weekly delivery of fabric. This requires the involvement of all employees to help move the material from the delivery bay into the storeroom, before the newly made curtains can be prepared for dispatch the following morning.
As I indicated when we met to discuss your request, if you decide to change the day you would prefer not to work to one earlier in the week, then I would be happy to reconsider your request.
Yours Sincerely,
B.E.M Ployer
When an employee can make a complaint
An employee can make a formal complaint to a Labour Inspector if they think that you did not properly follow the process for notifying them of your decision. They cannot make a complaint because you declined their request, or because they disagree with the reasons you gave.
If a Labour Inspector is unable to resolve the complaint, the employee can refer the matter to mediation.
If mediation does not resolve the matter, the employee can apply to the Employment Relations Authority (ERA) for a decision about whether you have properly notified them of your decision.
Employees must apply to the ERA:
- within 12 months of the employer’s refusal of the request, or
- where the request is not responded to, 13 months from the date that the employer received the employee’s request.
If the ERA decides that you have not complied with the process as set out in the law, it can impose a penalty of up to $2,000 payable by you to the employee.