Is working from home still working?

The Covid-19 lockdowns forced a shift in our work habits, with remote working becoming the new norm for many during that period. As we move away from having to work from home, many are still wanting to work from home – or at least wanting to have some sort of hybrid arrangement in place.  

However, there seems to be 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, which was an increase from previous years.

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

The latest headlines on this topic are about what is unfolding in the UK, with the new Labour government about to unveil new employment legislation which includes (among other things) a right to flexible working by default.

Some employees consider that they are more productive, and experience greater job satisfaction when working at home, which has been backed up by research from Massey University. Detractors, however, say that remote working has a whole host of problems including blurring the line between ‘work’ and ‘life’ leading to burnout, low visibility, less collaboration between workers, social isolation or disconnection, and, of course, the temptations of home that can be distracting (I’m looking at you, fridge!).

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

Can employers require employees to return to the office? 

The starting point is 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 important 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.

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 specific as to how requests for flexible working should be made. 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. It is important that requests are made in accordance with the Act, so as to trigger an employer’s duties in respect of requests.

The Act requires Employers to 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 reasoning behind this. Employers are not required to accept a request, but any refusal must be based on one of the specific grounds set out in the Act, for example because there would be a 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? 

The Health and Safety at Work Act 2015 is also an important consideration, as it 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 things such as whether they have an appropriate at-home workstation, whether employees are receiving appropriate support and check-ins when working remotely and that employees are taking sufficient breaks.

Authors: Jodi Sharman and Bridget Perkins 

Jodi Sharman

Bridget Perkins

Jodi has been practising employment law for nearly two decades, and has considerable experience in working with employees, employers and unions on a wide range of employment law matters and litigation issues. She brings a pragmatic approach to legal issues with a focus on client communication and delivering practical and commercial outcomes. Jodi is a member of The Law Association, and its Employment Law Committee, as well as the New Zealand Law Society. Her expertise in the employment law sector has been recognised by the major legal directories, including Chambers Asia-Pacific

Bridget studied at the University of Auckland and obtained a Bachelor of Laws (Honours) and a Bachelor of Arts majoring in Politics and International Relations, and was admitted as a Barrister and Solicitor of the High Court in November 2023. She regularly assists with Employment Relations Authority and Employment Court matters, attends mediation and provides advice to clients on a wide range of contentious and noncontentious matters.