End of working from home? Employment law expert’s advice on WFH changes as Government cracks down

Office workers ordered to stop working from home may have no choice but to follow their bosses’ orders, an employment law expert says - but it will depend on contractual arrangements.

An Auckland-based human resources consultant has also warned any abrupt changes an employer makes risk creating an unhappy workforce and driving higher turnover of employees, so any reforms should be considered against whether there are any substantive issues with people staying home.

As the Government begins cracking down on public servants working from home and business leaders call for limits in the private sector too, Peter Kiely shared advice with the Herald on what employees and employers can expect and what is legally sound.

If working from home is specified in an employee’s contract, an employer must consult with them and reach a mutual agreement before making any changes to those arrangements, Kiely said.

On the other hand, if it was a more casual arrangement between the employer and employee and not stipulated in any contract, an employer is within their rights to end it and call their workers back to the office, he said.

But what if an employee wants to continue their casual arrangement to work from home?

Kiely said: “The employer can require the employee to comply with the terms of the individual employment agreement. It is possible it might even result in disciplinary action.”

Employment law expert Peter Kiely. Photo / Kiely Thompson Caisley

He said employees who want to continue working from home after being used to an informal agreement should speak with their employers and negotiate a variation in their contract to allow for it.

For those unsure whether their arrangements were contractual or informal, Kiely said they should check their contract or ask for a copy directly from their employer or human resources department.

Kiely explained: “If discretion has been exercised to allow something that’s not a contractual right, in employment law, it always goes back to what the parties have agreed. If you have an agreement, that’s binding and can only be changed with consent.”

Human resources consultant and general manager of Positive People HR Management Consultants Toni Jacka told the Herald businesses should “be aware that [changes] could have a significant impact on your team’s engagement and your rate of turnover”.

Jacka said, “If you go through a change like that that people aren’t happy about, obviously they’re going to be less motivated and less energised to do their best. And also, perhaps they’re looking for other opportunities where they do get that flexibility”.

She echoed Kiely’s advice about contractual obligations and informal arrangements, also encouraging employees to check their contracts and advising that employers needed to follow proper processes and good faith engagements with staff.

Even if an employer was changing an informal policy, “it would be really important for any employer to understand that it is a big change for people”, Jacka said.

“It is really important ... to follow a proper change management process where you have really good communication and conversations with your team about why it needs to happen.”

Jacka said “everybody has a right to request flexible work” and encouraged people to speak to their employers about what arrangement they wanted and why.

She also said it was important for an employer to give legitimate reasons for pulling staff back into the office.

“If an employee has been working from home three days a week and they have been fulfilling all the outcomes of their roles and performing well, then it would be very difficult for a business to justify that it couldn’t continue and decline any request,” Jacka said.

“Each organisation needs to consider what the problem is they’re trying to fix because bringing people back into the office isn’t a silver bullet to increase productivity or improve communication.”

Working from home ‘not an entitlement’ - Government

Public Service Minister Nicola Willis revealed yesterday that she has asked government departments to call their staff back to the office and to enforce stricter rules on working from home.

Prime Minister Christopher Luxon (left) and Public Service Minister Nicola Willis (right) during the post-Cabinet press conference this week. Photo / Mark Mitchell

Willis issued new guidance to the Public Service Commissioner setting an expectation that “working from home arrangements are not an entitlement and should be by agreement between the employee and the employer”.

Prime Minister Christopher Luxon said he wanted a “highly productive and collaborative” public service.

“I do not want to see working from home undermining that ambition that we have,” he said, adding he was worried young graduates did not have the opportunity to learn from senior public servants because they were working from home.

Raphael Franks is an Auckland-based reporter who covers breaking news. He joined the Herald as a Te Rito cadet in 2022.

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