Mistakes to avoid with flexible work requests

Employment lawyer tells HRD there are several pitfalls that could be costly

Mistakes to avoid with flexible work requests

Working from home requests are now part of the workplace but a partner at an Australian law firm told HRD that flexible work requests can create legal pitfalls for employers.

“They [employers] aren’t all aware of the procedural requirements within the Fair Work Act, which can land them in trouble legally,” Sally Moten, Partner and Practice Group Leader at Lander and Rogers, said.

“Yes, you must respond in writing within 21 days of the request – but there are also other things that need to be considered. Not only does the Fair Work Act only cover certain groups of employees, outlined in Section 65, but the employer must do other things like meet with the worker in question to genuinely try to reach an agreement that accommodates them,” she added.

The word ‘genuinely,’ Moten noted, can be where employers trip up – as she says this is much more than just a chat about what they want and why it can or cannot be approved.

“It’s a real problem-solving activity. It can’t be done over Teams or over a text, for example. There must be a genuine workaround that both parties have actively contributed to – many employers and managers wont necessarily understand the importance of this, because they can be busy with other tasks.”

Flexible work request upheld by the Fair Work Commission

Moten cited a recent case in the Fair Work Commission (FWC) where the commission ruled that the employer was unsuccessful in its refusal of the flexible work request because they failed to document its consideration of the consequences of the refusal for the employee.

“In this case, we see the failure to include in the written response consideration of the consequences of the refusal as the reason the employer was unsuccessful,” Moten confirmed.

“What else was omitted was an outline of the steps to implement the flexible working arrangement that had been requested by the employee. So, you can see how those procedural matters are important.”

Some of the key things that need to be considered in a flexible work response, Moten said, are:

  • A written response must be made within 21 days of the request
  • Whether the employee is eligible for a flexible work request under Section 65 of the act
  • Meeting with the employee to formally discuss the request
  • Trying to reach a genuine agreement with the employee that reasonably accommodates their circumstances

Keeping a paper trail in a flexible work request

Not keeping a record of discussions about a flexible work request Moten said, is “almost fatal” because it is the best way to prove that all required avenues are being addressed.

“It’s especially important when an employer decides if the flexible work policy will have a negative impact on the business. Without formal recognition of conversations that have been had, it’s hard to justify the reason why something should or shouldn’t be allowed,” Moten noted.

Flexibility in working requests

Moten emphasised the importance that every request is different and that there is flexibility in the system, meaning each individual circumstance is measured on merit from the point of view of the employer.

“You must document the consequences to the employer for a flexible work request to be rejected – and it must be reasonable. There’s a lot of other grounds that a request could be rejected, such as capacity or incapacity to make the arrangements, impact on productivity or customer service, and there are many more.”

From an employer's perspective, it's not just the reasonable business grounds listed in the Act. It's broader than that and the Fair Work Commission will consider cultural reasons and team-based reasons as a reasonable business ground to reject a request,” Moten added.

Changing workplace mandates

There’s also challenges because flexible work has become a normal part of working life – and how requests are dealt with.

“If someone’s moved further away from work after COVID, for example, the commute may be harder or practically impossible,” Moten noted, “so this is where negotiation comes in and why it’s so important a potential workaround is fine – whether that’s coming into the office for a few days.”

“There are a lot of businesses mandating return to the office, and that's fine, you can do that, but your policy needs to have flexibility. You can't just have a blanket mandate without room for granting those flexible work arrangement requests,” she added.