Your rights: Handle staff requests with care

Q: One of my staff is on parental leave. She has asked if she can work part time when she returns to work. Can I refuse her request?

A: At this time, there is no specific legislation dealing with requests for flexible working hours. However, employers still have some obligations to employees who request flexible hours.

The Employment Relations Act 2000 requires employers and employees to deal with each other in good faith. Good faith includes being active, constructive, responsive and communicative. To comply with this obligation, requests for flexible working should not be dismissed outright. They should be properly considered and the employer should communicate with the employee about the request and the employer's response to it.

This does not mean employers must agree to requests for flexible working. Flexible working may genuinely not meet the needs of the business. However, if employers refuse requests, they should have good reasons and explain their reasons to the employee in a 'responsive and communicative' way.

The Human Rights Act 1993 prohibits discrimination on the grounds of sex and family status. Discrimination can be indirect - where a conduct or practice has the effect of discriminating against a person even though it may appear to be neutral. For example, in Dryfhout v Guardian Trust (1997) HRNZ 572, an employee returning from parental leave requested slightly later start times and earlier finish times, with a shorter lunch break, because of childcare arrangements. The Employment Court granted an injunction to stop the employer dismissing her for not working the usual hours. It held that the employer might have been infringing the Human Rights Act 1993. In that case, the employee's request was likely to cause little, if any, detriment to the employer. In addition, the requested working hours fell within the hours of work in her employment contract, although they were a change from the hours customarily worked in her position.

Therefore, employers should consider requests and respond reasonably to them, but there is no presumption that the employer must agree. For now, there is no specific legislative right to flexible working hours.

The situation will change if the Employment Relations (Flexible Working Hours) Bill is passed. Employees with full-time care of a child under five years (or a disabled child under 19 years) could request a variation of their working hours or days. The employer could only refuse the request if certain criteria apply. The employee could challenge a refusal in the Employment Relations Authority. However, this Bill has been set aside until next year.

You should discuss your employee's request with her in good faith. Be communicative about your views and constructive about how to deal with her childcare issues. You should be responsive about your reasons for refusing. If her request will cause little disruption to your business you may run the risk of a claim if you refuse her request.

The expert
Rani Amaranathan is a lawyer in the Auckland employment team of the Australasian law firm, Phillips Fox. Answers are of a general nature only and should not be substituted for specific legal advice.

* Email your employment-law questions in 200 words or less by clicking on the link below and putting "Your rights" in the subject line. Questions are not normally acknowledged on receipt and will be answered only through this column