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While any employee can ask for flexible working arrangements, you do not have any legal obligation to accept this request. However, reasonably accommodating your workers can help create a positive working environment. Additionally, accepting a flexible working arrangement may also increase productivity. This article explores what to do if an employee asks for flexible working arrangements.
As an employer, understand your essential employment obligations with this free LegalVision factsheet.
What Are Flexible Work Arrangements?
Flexible working arrangements can include:
- changing hours of work (e.g. working fewer hours or changing start or finish times);
- updating patterns of work (e.g. working ‘split shifts’ or job sharing); or
- changing the place of work (e.g. working from home).
As an employer, you are under no legal obligation to respond to your employee’s request. An exception is where your employee has at least 12 months of continuous service with your business and (only) if they:
- are the parent or have responsibility for the care of a child who is of school age or younger;
- are a carer;
- have a disability;
- are 55 or older;
- are experiencing family and domestic violence; or
- provide care or support to a member of their immediate family or household who requires care or support because they are experiencing family and domestic violence.
Note that casual employees also need to be regular casual employees and have a reasonable expectation of continuing employment on a regular and systematic basis.
Do I Have to Respond?
Your employee’s request must be in writing. Likewise, it must state what they want to be changed and why.
As an employer, you must respond in writing to your employee’s request within 21 days. The response needs to state whether you grant or refuse the request. If you refuse the request, you must include detailed reasons for the refusal in your response.
Continue reading this article below the formWhat Do I Need to Consider?
When considering an employee’s request for flexible working arrangements, you should consider the following:
- why the employee is making the request;
- the employee’s essential duties;
- whether their request will negatively impact their essential duties;
- whether technology could assist with this proposed arrangement; and
- the consequences of refusing their request.
Additionally, workplace flexibility may increase productivity, lower stress levels, and generally keep your employees happier. Further, there is the potential to retain great staff and create an environment where people want to work for your business.
What If I Disagree With the Request?
Flexible working arrangements can be beneficial for everyone. However, it may be the case where you and your employee fail to see eye to eye. Indeed, you might disagree on the details of a request.
Importantly, you have no obligation to agree to the request and can reject it on reasonable business grounds. Although it is a good business practice to try to be flexible with your employees wherever possible. In other words, do not just assert your authority for the sake of it.
If you disagree with the request, ask whether a more suitable alternative exists. Next, discuss it with your employee and see what you decide on. Notably, you should try your best to make something work for them.
Of course, a failure to accommodate flexible work requests may also put you in breach of your obligations under the:
- employment contract;
- enterprise agreement; or
- other written agreement.
An employment lawyer can help you to understand your options in accepting or refusing a request from an employee.
Can I Trial the Arrangement Before Making a Decision?
You can trial the arrangement before making a decision. For example, you might set a fixed amount of time, like three months, to trial an employee’s requested work arrangement.
Generally, your employee will receive this positively because it demonstrates that you are willing to find an arrangement that suits you and them. This will also allow you to reassess after the trial and discuss with your employee what worked and what did not. A trial will allow you and your worker to find a better arrangement.
Do I Have “Reasonable Business Grounds” for Refusing a Request?
The Fair Work Act outlines a non-exhaustive list of reasons that may amount to reasonable business grounds for refusing a request. These include:
- the excessive cost of accommodating the request;
- that there is no capacity to reorganise the work arrangements of other employees to accommodate the request;
- the impracticality of any arrangements that would need to be put in place to accommodate the request, including the need to recruit replacement staff;
- that there would be a significant loss of efficiency or productivity; or
- that there would be a significant negative impact on customer service.
Your employees may seek remedies (or legal relief) under other federal or state laws, such as anti-discrimination legislation. This prohibits unlawful discrimination on the ground of family or carer’s responsibilities. Accordingly, you must ensure your decision is not discriminatory if you are considering rejecting a request.
Key Takeaways
As an employer, you are not obligated to accept an employee’s request for a flexible work arrangement. However, you should consider the arrangement with an open mind, given it can assist your employee’s well-being. The Fair Work Act sets out rigorous processes and timeframes when assessing a request for a flexible working arrangement. If an employee meets the criteria, you must have a reasonable business ground or reason to deny their request. For example, implementing the changes may be impractical or excessively costly. However, be aware of anti-discrimination laws that are in place. In addition, you want to ensure you are not rejecting a request for flexible working arrangements in a discriminatory way.
If you need help understanding flexible working arrangements, our experienced employment lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.
Frequently Asked Questions
Yes. You must respond in writing to the employee’s request within 21 days. The response needs to state whether you grant or refuse the request. If you refuse, you must include detailed reasons for refusal.
If an employee is unhappy about the process or a decision concerning their request for a flexible working arrangement, they can apply to the Fair Work Commission. The Commission may mediate or arbitrate the matter in the first instance. Further, penalties can be more than $13,000 for an individual and $66,000 for a company for failing to comply with the National Employment Standards.
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