Many employers who implemented work from home arrangements during the pandemic are experiencing resistance from some employees when requesting they return to the workplace.
These employees may have a right under the Fair Work Act 2009 (Cth) (FW Act) to request a work from home arrangement.
This right to request is embodied in the right of eligible employees to request a flexible work arrangement under the FW Act National Employment Standards (NES).
The NES right is not a right to work from home – rather it is a right to request to work from home.
The request needs to be grounded in a defined need, which includes parental responsibilities, carer responsibilities, disability or experiencing family violence. The employee must have at least 12 months of service.
When can you refuse the request?
Grounds for the employer to refuse a request for a flexible work arrangement, such as working from home, include:
- cost – but the cost must be excessive, not “inevitable small adverse impacts” (ASU v Brimbank City Council (2013));
- incapacity to reorganise the work arrangements of other employees to accommodate the request;
- impracticality of any arrangements that would need to be put in place to accommodate the request (including the need to recruit replacement staff);
- significant loss of efficiency or productivity; and
- significant negative impact on customer service.
The employer must weigh the personal circumstances relied upon by the employee against the extent of cost and impact on the business of allowing the request.
In Phillips v Integrated Medical Solutions Group (2019), a medical receptionist claimed her employer had forced her to resign because her employer refused to accept her request for working hours of 10am–2pm, with most or half of all school holidays off work. The Fair Work Commission (FWC) noted that the NES right to request is not an entitlement to demand fewer working hours. The employer repeatedly, reasonably and professionally corresponded with the employee about the reduced hours of work it could accommodate. It offered to the employee the opportunity of part-time work of 6 hours per day, less a half hour unpaid meal break, during school hours. Alternatively, it invited the employee to return as a casual employee.
The FWC ruled the employer was not unreasonable in its refusal, and it met all of its obligations to respond appropriately to what it understood was a flexible work arrangement request.
When can’t you refuse the request?
Refusing an employee’s request to work from home on grounds of age, disability or parental and carer responsibilities may amount to direct discrimination if it is different treatment to employees who make the request for other reasons.
For example, if you refuse Doris’ request to work from home so she can meet her family responsibilities in circumstances that are less favourable than you would treat another employee without family responsibilities who is seeking to work from home, e.g. someone who is seeking to combine work with study, this maybe direct discrimination.
Similarly, if you refuse the request because the business requires employees to work at the business premises and this is an unreasonable requirement, you may be exposed to a complaint of indirect discrimination.