News & Thinking

Has Covid-19 created a new flexible working regime?

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Anthony Harper

For the better part of 2020, the outbreak of Covid-19 has challenged ordinary operations in the workplace. Globally, professionals have had to adapt, improvise and overcome problems that most have never faced before.

Many have found this transition easy and have found that they prefer it, so the question has been raised: should this become the new norm?

Working from home and flexible working hours have certainly become the new necessary. Over the past three months both employers and employees have foregone daily commutes, strict professional wardrobes, and the distractions of open-plan office spaces. However, these benefits have not come without their fair share of challenges.

Now that we are firmly in Alert Level 2, businesses may be evaluating whether operations should remain at home, or return to the traditional office. If supporting your employees and maximising productivity/efficiency are the goals, what is the best method to do this?

The “best” method

Your employees have had time to brainstorm over the past nine weeks and may come to you now with ideas on how they would like to work going forward.

What is most important is that you consider any alternative working arrangements that your employees propose in good faith. Effective communication will be key in these situations and it is invaluable that you create an environment where employees feel that they can voice their ideas or concerns.

Your obligations

Part 6AA of the Employment Relations Act 2000 sets out an employee’s ability to make a request to vary the terms and conditions of their own employment. Provided that an employee’s request is in writing, includes their name, date and states that the request is made under “Part 6AA” of the Act, employers must deal with the request as soon as possible. Following the adjustments made to working conditions owing to Covid-19, employees may now be looking to vary their hours of work, or their place of work. Under the Act, any variation is referred to as “flexible working”. Although you may be reluctant to accommodate flexible working conditions, you do need to follow the correct procedure under the Act before you make a decision.

Our suggested procedure


Your employee is required to submit their request in writing, but once you have received this we recommend you arrange a meeting to discuss their reasons and intentions. This will help you to understand why they are requesting the change and give you a springboard for alternative solutions.


Following consultation, you should take some time to consider the benefits and negatives to your employee’s proposed variation of conditions. Flexible working arrangements can improve efficiency, creativity and retention, but may also have drawbacks in terms of team engagement, management and delegation of work. It can also pose health and safety risks under the Health and Safety at Work Act 2015.


An employer must deal with a request for variation as soon as possible, but cannot respond later than one month after receiving the request. Please note that you are only able to refuse a reasonable request under one of the following specified grounds:

  • Inability to reorganise work among existing staff.
  • Inability to recruit additional staff.
  • Detrimental impact on quality.
  • Detrimental impact on performance.
  • Insufficiency of work during the periods the employee proposes to work.
  • Planned structural changes.
  • Burden of additional costs.
  • Detrimental effect on ability to meet customer demand.

What you decide for one employee, may also not be the same flexibility you offer to another employee. Different roles have different demands and whilst your finance manager may be able to work from home, your sales consultant may not. It is important that you consider the extent of the changes that you allow, and the implications on all aspects of your business before you accept or refuse.

Health and safety

Finally, an employer should seriously consider their duty to reasonably ensure their employee’s safety under the Health and Safety at Work Act. When an employee is working from home, their ‘home’ becomes their workplace and it is more difficult for employers to control their safety. One of the mechanisms that an employer can engage with is to create a policy outlining employee’s health and safety obligations if they choose to work from home.

If you have any questions about this process, or would like assistance in creating a health and safety policy, please contact one of our employment team experts.

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