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Employment law challenges facing hybrid working

Greg MacDonald and Lara Prentice

This article focuses on the learnings from the Short, Sharp Webinar: Employment Law Challenges of Remote Working with expert panellists Chris Baldock, Director, PwC Legal, and Dr Nadia Dabee, Senior Lecturer in Commercial Law at the University of Auckland Business School.

Chris Baldock leads the PwC Legal employment law practice and advises on all aspects of workplace legal issues, working with some of New Zealand’s most prominent private and public organisations.

Dr Nadia Dabee is an award-winning senior lecturer in commercial law at the University of Auckland Business School. She specialises in employment law, taxation, and workplace health and safety law and regulation.

Our employment laws are behind the times.

The COVID pandemic has fundamentally changed the workplace with working from home or hybrid working being the new normal. Organisations are adapting to this change, but the employment laws are yet to catch up. New Zealand’s employment laws were designed for a time that has long passed, when attending the workplace five days a week was standard practice and working from home was an exception.

Organisations are obliged, within reason, to do everything they can to ensure that their employees are working in a safe and productive environment, whether that is at home or the workplace. To some degree, home and work life have merged, and for many employees, it’s no longer about working from home but living at work. Organisations cannot ignore their legal obligations to support their employees no matter where they are working, and employees have a responsibility not to go rogue. It is a two-way street.

“The key thing is to have that information flowing through the organisation, downwards and upwards. And I think once you do that, you’ll find that a lot of things clarify themselves on their own.”
Dr Nadia Dabee

A crucial component of New Zealand’s employment law is the duty to act in good faith. Many of the actions taken to fulfil employment law obligations, in terms of employment relations and engagement in good faith, will also help satisfy duties under the Health and Safety at Work Act. All the while highlighting the key issues people face when working from home. What that means as an organisation is a new way of leadership, where it is essential to listen to employees and set clear guidelines. No longer can organisations dictate workplace expectations; they need to work with their employees to find a middle ground that works for everyone.

The home workplace: what do organisations need to be aware of?

Assess the workspace.

The home workplace will vary from employee to employee. It could be their garage or a well set up home office. A business has a duty to ensure that the home workplace meets health and safety regulations as far as reasonably practical. While this can be challenging to achieve, the key is to work with employees and better understand what will enable them to be more productive while in a safe working environment.
Dr Nadia Dabee

The equipment issue is a big one. 

The main issue here is if an organisation is expecting their employees to do their work outside of the designated workplace, such as at home, they’re obliged to provide them with the ability to do that as reasonably practical. There may be additional costs involved, but employers need to find an amount that allows this to occur. And most organisations are doing that. Fundamentally, if businesses are fulfilling their good faith obligations, and there is an expectation for a productive home workforce, employers, within reason, should provide them with the tools to do this.
Chris Baldock

Sick leave entitlements.

If an employee is unwell and has sick leave entitlement, it absolutely should be given to them. They are entitled to this leave under the Holidays Act as a matter of law. However, there’s no reason employers cannot ask for more information; it’s fair to ask employees why they’re taking time off to understand potential health and safety issues. Good faith is a two-way street, and again, it highlights that health and safety, and employment relations are not mutually exclusive issues.
Chris Baldock

Flexible work impacting office attendance.

Employees refusing to come into the office has become a big problem. So, can businesses make their employees be physically present at the office? The answer is that it is reasonable to request an employee to come into the office at least some of the time. An employer can legitimately think about the welfare of all staff and require that they come in regularly to improve morale for everyone. Good communication will help identify the optimal balance of being in the office instead of working from home. This can vary amongst teams, even within the same organisation.

The Employment Relations Act has a framework around requests for flexible working, it’s a bit obsolete now, but it exists. It has a process that employers must follow, which requires them to respond to a flexible work request from an employee. Ultimately, employers need to take an open-minded approach. If they decide to deny the request, employers need to provide valid reasoning, as prescribed in the Act. Again, there’s a balance, which goes back to good faith communication.
Chris Baldock / Dr Nadia Dabee

Looking ahead: the pandemic is not over yet.

Organisations need to be proactive and agile, prepared to manage rapid shifts and uncertainty; COVID is still here. Employers need to constantly monitor their internal framework to ensure its fit for purpose in a health and safety and an employment relations context. Are your employment documentation policies and agreements fit for purpose right now? And are they adaptable for possible changes that we could see coming in the next six to twelve months?

“The key message for organisations in the next few months, and possibly years, is being flexible in their approach. Make sure your organisation is prepared and able to pivot your employment relations and health and safety responses regarding potential unforeseen changes.”
Chris Baldock

People will no longer be in the office five days a week; the new normal is the hybrid work life. To retain and attract staff, a focus on two-way communication is essential. It is no longer a one-way street where employers only dictate to their employees. Employees, because they’re on the front line, the sharp end, as it’s called, will know what they need to improve their productivity, to do their work, and do their job safely. The primary advice here is to try and get systems and tools in place that allow quality information to flow through the organisation, such as survey tools or third-party providers that enable in-home assessments. It will depend on the organisation and its functions to understand the best way to gain this valuable information.

At the end of the day, an organisation must be proactive in working with employees to create an attractive workplace environment, which means prioritising mental well-being. To be a good employer is to be holistic in your approach. Organisations need to balance productivity with employees’ well-being and mental health. Creating a supportive workplace that cares about the well-being of their employees requires organisations to ensure that their employees have a sense of purpose, some control over how they do their job and building connections in the workplace.
Chris Baldock / Dr Nadia Dabee

Summing up

There are employment laws and a framework, despite them being a bit obsolete for the new hybrid workstyle, organisations must work within them. Fundamentally it is about ensuring the health and safety of workers, as far as is reasonably practicable. What an organisation can justifiably do in any situation is the starting point in determining its obligations. To best determine this, it is essential to have quality information flowing through the organisation, both up and down. Remember, it’s a two-way street, and choosing the best actions moving forward will differ for each organisation or even different teams within the organisation. It’s about prioritising the safety and well-being of staff in a way that supports operational functionality.

Please note this is not legal advice, and organisations should solicit legal advice specific to their organisation. 

For more information, watch the entire Short, Sharp webinar here.

Short, Sharp webinars are modelled on our executive courses and create an opportunity to engage with cutting edge thinking, from a theoretical and practical perspective, around the more critical topics facing businesses right now.


7 June 2022