Feature article

How to bring your employees back into the office

(And what you’re legally able to do)

While a hybrid form of working has become the norm in many businesses around the country, some employers would prefer to see more of their people in the workplace. But how can they go about this? And what are their legal rights? 

The return to office does have a lot of pros after all - it can help re-establish company culture, help junior staff with mentoring and just return to the way they used to work pre-Covid.

So we asked our legal experts, Penelope Ryder-Lewis and Carolyn Heaton from specialist workplace law firm, Bartlett Law, about what employers can legally request when it comes to getting their employees back into the workplace. 

Does the location of the office that’s stated in the employment agreement affect whether you can require your employee to come back into the office more?

Under the Employment Relations Act (ERA), employment agreements in Aotearoa must be in writing and include ‘an indication of where the employee is to perform the work’.

If this is specified as the employer’s physical premises, then the employee is obliged to follow a reasonable directive to return to work there.

The ERA does, however, give an employee on an individual employment agreement the right to request a permanent or temporary change to their place of work by seeking a flexible working arrangement. A formal written request must be submitted and the employer must respond within 30 days. 

The employer isn’t obliged to agree, but a request can only be refused on one of eight general grounds set out in the Act, for instance, an ‘inability to reorganise work among existing staff’ or ‘planned structural changes’.  

Employers must also refuse requests if the employee is bound by a collective agreement and the requested change would be inconsistent with that agreement.

What if you have an informal agreement with your employees that they can work from home (WFH)?

It depends. If the employment agreement requires all changes to the terms of the employment to be in writing and agreed to by both parties, then an unwritten/informal change won’t be enforceable. 

If the employment agreement doesn’t require changes to be recorded in this way, then whether working from home can continue depends on if it can be proved that both parties agreed to the change and that it was permanent. 

Now the restrictions of the pandemic are behind us, there’s less need to work from home. An informal practice of WFH could now come to an end and the employer could insist employees return to their work location as stated in their employment agreements. 

It’s important for employers to remember that they must treat their employees fairly and reasonably, and be responsive and communicative. They should discuss their requirements with the relevant employees before insisting on a return to the office and perhaps allow some time for the change to fully take effect. 

If you can prove that your employee is less productive at home than at work, can you refuse their request to continue flexible working?

Many NZ employers still believe that employees who work from home are less productive, even though, anecdotally, the evidence worldwide seems to suggest otherwise. 

But yes, one of the statutory grounds upon which an employer can refuse a request for a flexible working arrangement is that it has a ‘detrimental impact on performance’.

What if a long-term employee refuses point blank to come into the office more?

This depends on the terms of their employment agreement. If the employer and employee have agreed, in a written agreement, that the employee can work from home three days a week and no time limit has been placed on this, then the employee is entitled to work from home on those three days.

If the working from home arrangement has a time limit, then when the end of the working from home period is reached, the employee must return to their original working arrangements. If they don’t do so, they may be in breach of their terms of employment. In that case, the employer would need to investigate why the employee was refusing and then decide what to do based on their findings. 

The main message for employers to take from this is that any changes to terms of employment need to be carefully thought through before they’re agreed to. Should a change be temporary or permanent? Any agreement reached should be recorded clearly, in writing.

Can you hire new employees on the basis that they’ll be working four days in the office and one day a week from home, while other employees have an arrangement to work three days in the office and two from home?

Yes, you can negotiate different terms with individual employees. This isn’t uncommon and more favourable terms negotiated with existing employees are often  ‘grandfathered’.  In other words, they remain in force in the employment agreements of the relevant employees but aren’t offered to new employees. 

If an employee wants to change their particular terms then the employer has to be fair and reasonable in considering their reasons for doing so. At the end of the day, though, having listened with an open mind, an employer is entitled to make decisions they believe are best for the business.

What other ways are you seeing employers use to encourage people back in the office more days a week rather than ‘making’ them?

Looking at feedback from workers around the world, employers can address some of the pros (cost and time of commuting, cost of bought meals) and cons (isolation, lack of clear work/life balance) of working from home. So, for example, employers are providing weekly team lunches and other activities in the workplace. They might also promote flexibility of hours so that employees can avoid peak commute times and manage school drop off and pick up more easily. It can also be about making in-person, one-on-one meetings a more enjoyable and productive time.

We think there may be a move back to more office-based work but perhaps with an increase in the flexibility of days and times of work, with no change to the total hours worked.

Bartlett Law regularly run free webinars on workplace law topics of interest such as medical certificates, managing sick leave, and restructuring and redundancies. 

Just email lawyer@btlaw.co.nz to register for the invite list and get updates about upcoming Bartlett Law’s webinars.

Disclaimer: this information is general only, and does not constitute and is not a substitute for legal advice. No liability of any kind is undertaken by Bartlett Law or its solicitors to any person in respect of this information.


Gill South
Gill South