Do requests for flexible working arrangements need to be accommodated?
The National Employment Standards (NES) provide that an employee returning to work from unpaid parental leave is entitled to return to the position that they held immediately prior to commencing that leave. Where their substantive position no longer exists, the employee is entitled to return to an available position for which they are qualified and suited to nearest in status and pay to the pre-parental leave position.
The NES further provides that employees who are returning to work following a period of parental leave are entitled to request:
- Flexible working arrangements (i.e. part time hours, flexible start/finish times, working from home)
- A further period of up to 12 months’ unpaid parental leave.
Where an employee requests to return to work in a part-time capacity (or under a similar arrangement), this can create confusion and concern for employers who are unsure of their obligations in regards to accommodating such requests.
Requests for Flexible Working Arrangements
Employees, who are a parent, or who have responsibility for the care of a child of school age, or under the age of 18 with a disability, have the a right to request a change in working arrangements.
Where an eligible employee requests, in writing, to return to work on a part time basis or under an alternative flexible working arrangement, the employer is required to genuinely consider the request.
An employer is not automatically required to approve an employee’s request to change their working hours or a request for flexible working arrangements. However, such a request can only be refused based on ‘reasonable business grounds’. Examples of what may constitute ‘reasonable business grounds’ are provided below.
When considering a request for flexible working arrangements, there is scope for an employer to discuss and negotiate with the employee in order to reach an arrangement that will balance the needs of both parties. Such an arrangement could include:
- Agreeing to accommodate the flexible working request on a trial basis, setting a review date so that you can assess whether the flexible arrangements are working out for both yourself and your employee.
- consideration of alternative arrangements such as flexi-time, staggered starting and finishing times, condensed working weeks, or allowing employees to work longer hours per day and fewer days per week.
In the event that an employee’s request for flexible working arrangements cannot be accommodated within their current role, the employee can choose to return to their substantive pre-leave position or they could accept an alternative role that could accommodate their requests (provided one is available).
Requests for an Additional 12 Months Unpaid Parental Leave
Prior to returning to work from their initial period of parental leave, an employee may request to extend the period of unpaid leave for a further 12 months. Again Employers are required to genuinely consider such a request from an employee, and can only refuse on reasonable business grounds.
Where such a request is made, there is scope for an employer to discuss and negotiate with the employee to reach a suitable arrangement that meets the needs of both parties.
What are Reasonable Business Grounds?
‘Reasonable business grounds’ for the purposes of refusing an employee’s request for flexible working arrangements or extended unpaid leave may include:
- the new working arrangements requested by the employee would be too costly for the employer to implement and support
- there is no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested by the employee
- it would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the new working arrangements requested by the employee
- the new working arrangements requested by the employee would be likely to result in significant loss of efficiency or productivity
- the new working arrangements requested by the employee would be likely to have a significant negative impact on customer service.
Making and Responding to Requests for Flexible Working Arrangements or Extended Leave:
An employee’s request must be made to the employer in writing no later than 4 weeks prior to the date that they are due return to work.
The employer is required to provide the employee with a written response to their request within 21 days, stating whether the request has been approved or declined. If the request cannot be accommodated, the employer is required to:
- discuss the reasons for this with the employee and
- include the reasons for declining the request in their written response to the employee.
While there is limited scope for an employee to be able to challenge an employer’s refusal to accommodate their request for flexible working arrangements or to extend their period of leave, making such a request is considered to be an exercise of an employee’s workplace right under the general protections provisions. As such, care needs to be taken by an employer not to discriminate or take any adverse action against an employee when considering their request or when managing their return to work.