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Flexible Work Arrangements – for You, the Employee

By Jennifer Mills & Anne Shirley

At Professionelle, we often receive requests for advice and perspective on the issue of flexible work arrangements and how to set them up and negotiate them. Every case is different and there are some tricky situations. For example, if your boss changes suddenly, and you have been running a flexible set-up informally with nothing in writing, how do you go about formalising it? What if there will be costs to make the flexible arrangement work e.g. laptop for remote working? Or if your boss is unwilling to discuss more than one limited option, essentially expecting you to choose between full-time work and full-time domesticity?

Communicate!

The key to establishing and maintaining mutually successful flexible working arrangements is communication.  That principle is as true for employees as it is for managers.

It is up you to make the initial approach to your employer if you wish to discuss the possibility of flexible working options.  The best way to do this is to think about what you want to achieve and the possible flexible working arrangements that you think may work, prior to raising the issue with your employer.  If you can demonstrate that you have thought about the company’s needs and how you could make a flexible working arrangement work for both you and the company prior to submitting a request, you are more likely to get a positive response.

Plan Ahead

It is therefore useful to have prepared a plan or proposal that includes:

  • what you want to achieve from flexible working;
  • the details of the flexible working arrangement that you propose, ideally, with some alternatives or flexibility on your part (this may include different working hours and/or different methods of working, such as working from home or remotely);
  • how long the flexible working arrangement will stay in place (is it permanent or temporary?);
  • how the duties of your role will continue to be completed to the same standard under each flexible working option (or how the impact can be minimised);
  • the benefits for your employer;
  • what measures your employer may have to put in place to accommodate the flexible working arrangement (for example hiring extra staff or buying laptops or other equipment).

Some workplaces, particularly large organisations, may have a policy or form that you will need to consider as part of this exercise.

Be Realistic

Suggesting to your employer that you should be able to meet all the requirements of your role by answering emails from your laptop while lying on a beach in Fiji is unlikely to be met with much enthusiasm.  Understanding that your employer has a business to run and he or she will be primarily concerned with making sure the work gets done and clients’ needs are serviced is important when discussing flexible working options.  You should therefore analyse what the key components of your role are and demonstrate to your employer how those components will be met under your proposed flexible working arrangements.

Formal and Informal Requests

Employers have a general obligation to be responsive and communicative. This means they must consider and respond to any request that you make, so you can raise the option of flexible working arrangements with your employer informally at any time.

However, if you are caring for a child or any other person, you have the ability to make a more formal request for flexible working arrangements under the Employment Relations Act 2000 (but you may only make one request every 6 months). The request must:

  • be in writing;
  • state the date;
  • state that it is a flexible working arrangements request under part 6AA of the Employment Relations Act;
  • specify the variation of the working arrangements requested and whether the variation is permanent or for a period of time;
  • specify the date on which you propose that the variation takes effect and, if the variation is for a period of time, the date on which the variation is to end;
  • explain how the variation will enable you to provide better care for another person (often your child or children, but requests can be made in relation to anyone you are caring for); and explain what changes, if any, the employer may need to make to their arrangements if your request is approved.

Good Faith but No Guarantees

Your employer must consider your request in good faith and respond in writing as soon as practicable after receiving your request (and no later than 3 months after receiving it).  If your employer refuses the request they must state the reasons why they refuse.  The grounds on which an employer can refuse the flexible working arrangements request are broad, so a formal flexible working arrangements request will not guarantee that your employer will agree to your request.  However, it does provide an obligation for your employer to seriously consider your request and the reasons why the company may, or may not, be able to accommodate it.

Who Pays?

Some flexible working arrangements may involve a level of additional expense (for example, a need for extra equipment such as a laptop to be provided, or a requirement for a higher broadband data allowance at your home).  There are no hard and fast rules about who is responsible for such costs and, naturally, any additional cost to the employer is likely to be a factor in the employer’s decision about whether to agree to your request.  While it is relatively standard for an employer to cover certain costs (particularly if they are likely to be tax deductible business expenses), you may be prepared to agree to absorb the expense yourself in order to obtain your employer’s agreement to the arrangement.  

Whatever the outcome, it is important to consider what extra expenses there might be and agree in advance who will be responsible for them.  Unless your employer has agreed to pay the extra expenses, you will be responsible for them. This would include any unforeseen expenses, or any increases in cost over time – although it would open to you to approach your employer to see if some adjustment can be made.

Get it in Writing

If you are able to agree a flexible working arrangement (whether as a result of a general request or a more formal request under the Employment Relations Act), you should ensure it is recorded in writing and signed by both parties so there is no misunderstanding about the agreement in future, particularly if there is a change in management. The agreement should include whether the arrangement is permanent or temporary, any dates on which the arrangement will be reviewed and, if relevant, who will be responsible for providing the necessary equipment. If the company has a human resources department, they should be made aware of the arrangement.  

If you already have a flexible working arrangement in place, which has not been recorded in writing, it is never too late to do so. A verbal agreement about a flexible working arrangement would still be valid and enforceable, but it is more likely that disagreements may arise in future about what was agreed (in particular, whether your employer has the ability to end the arrangement). One way to record the agreement in writing is to email or write to your employer explaining that you want to record the flexible employment arrangements that are in place and setting out the terms of what you understand to have been agreed. You may also wish to ask your employer to update the terms of your employment agreement to reflect the arrangement.  

The company should then reply to your email or letter within a reasonable period of time.  This should allow any points on which the two parties are not in complete agreement to be discussed and clarified at that point. If the company does not respond to you, in the event of some later disagreement, it may be treated as having accepted that your email or letter set out the correct position.

Resolving Problems

If you are unable to reach an agreement with your employer, the Human Resources Department of the company will often be the first place to turn to for assistance. If there is no Human Resources Department or you have exhausted all dispute resolution options within the company and you are still unable to agree, the Department of Labour’s mediation service may be able to help.  

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