During the Government imposed lockdowns, most employees who could work from home, did, and did not question this.  People were generally prepared to do whatever was necessary to keep their employer’s business afloat, and their pay check coming in.

But the rules under the Red Alert Level are different. Most businesses are not required to send employees home, although looking around Wellington, it appears many have.  This raises some tricky legal questions as to the rights and responsibilities of employees and employers in this context.

An employee’s place of work is a core term and condition of their employment.  The Employment Relations Act requires that Individual Employment Agreements provide “an indication of where the employee is to perform the work”.  Most agreements stipulate that this will be at the employer’s business premises, wherever they may be.

This means that if an employer wants an employee to work from home, they are likely to require the employee’s consent because this is a change to their terms of employment.  The exception to this is if the agreement provides for a degree of mobility, but in most cases a requirement to work from home will be viewed as a fundamental change that cannot be unilaterally imposed by an employer.  The flip side of work location being a term and condition of employment is that an employee can not insist on working from home as a matter of preference.  This will require their employer’s agreement.

There may be cases where an employer shuts its physical premises down such that there is literally no option for the employee to continue working in the workplace.  This is potentially a legitimate decision for an employer to make in order to cut costs and we have seen a lot of businesses either downsizing or eliminating their physical footprint altogether. 

Where does this leave employees?  A fair and reasonable employer would consult with employees about the options, including working from home, but if no such alternatives were identified, it is likely that affected employees would be redundant.

This is an important point because employers are entitled to reorganise their businesses to cut costs and improve efficiency, and conversely, employees cannot insist on continuing to work from a workplace that has been shut down.  In this situation the better solution for both parties is to seek to reach an agreement as to how to continue the employee’s employment in a different way, including potentially working from home.

That said, working from home arrangements are not straightforward.  There are a number of things to be considered, including the employer’s obligation to ensure that the employee’s “workplace” is safe and healthy.  This is likely to require the employer to satisfy itself that the employee’s working environment at home is set up safely, and to undertake an ergonomic assessment if appropriate.  

An employer is also required to ensure that employees have appropriate breaks during the day and that leave is managed effectively. The risk of social isolation is also a foreseeable “hazard” that employers are obliged to consider in this context.

There are also issues of security of information and equipment, reimbursement of additional expenses, and how supervision and monitoring output and performance will occur.  Issues have arisen with employers monitoring and recording when employees log in and out each day, and this can give rise to privacy concerns and a sense on the part of employees that their privacy is being invaded and that their employer does not trust them.   This may be so, but an employer is entitled to take reasonable steps to ensure that employees are working effectively from home and are productive.

These issues should all be covered off in a written agreement with an employee and/or a policy.

From an employee’s perspective, working from home will suit some people, and not others.  Given the increasing number of businesses moving to either a full or partial working from home model, employees should consider this when they start a new job, and make sure that their employment agreement adequately protects their interests should this occur.

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