Can I refuse a working from home request?

Most likely yes, so long as the refusal is based on valid business grounds.

For workplaces that operate largely in an office setting, working from home (WFH) has become the primary solution in enabling employees to continue their work during a COVID-19 outbreak.

In many cases, WFH has been utilised by both employers and employees outside of a COVID-19 outbreak due to the convenience and flexibility it provides. It is more common than not for these arrangements to be implemented informally and on an ad-hoc basis, without clear guidelines around what is expected of both employer and employees.

As WFH has become widely adopted across a range of industries, the position that it is a separate employee entitlement has become increasingly more popular. Furthermore, employees who were previously directed to work from home due to COVID-19 by their employer are now refusing to return to the workplace. Without a formal arrangement in place, it can be very difficult for an employer to objectively demonstrate why the employee needs to work from the office when they were performing their duties from home without issue. While claims of workplace culture and team-work are often put forward, these benefits are challenging to measure and generally not persuasive.

In reality, WFH is unlikely to be an employee entitlement unless it is explicitly stated in an industrial instrument or contract. In the majority of cases where WFH is initiated by an employee, it will fall under a request for flexible working arrangements.

Flexible working arrangements are alterations to the general way in which an employee is expected to perform their work. Common examples of requests include changes to hours, patterns and locations of work. Traditionally, they have been accessed by parents to facilitate childcare duties and people with a disability.

Policies and procedures for responding to flexible working arrangement requests will differ depending on the Modern Award or Enterprise Agreement that applies, or if there is a specific company policy. However, there are some general business ground considerations which employers are likely to be able to rely upon when responding to WFH requests.

Requests need to be considered on an individual basis.

Business Grounds

Employers can consider whether a WFH arrangement would cause a significant drop in productivity. It may be more applicable where a particular employee has demonstrated that they need more close supervision to meet their work expectations.

Similarly, employees who require face to face contact with their managers, team or clients may be less suitable for WFH. For example, the Queensland Industrial Relations Commission recently supported an employer’s refusal of an HR consultant’s WFH request on the grounds that:

1. the difficult and personal issues dealt with by the consultant often required face to face contact; and

2. surveyed client groups demonstrated a strong preference for face-to-face work.

These factors were particularly significant because of the employee’s intention to WFH from another state. Therefore, they were unable to physically attend work at short notice if required.

The decision highlights that both the needs of the business and the employee’s particular circumstances are relevant in determining a WFH request.

WFH can be implemented only on certain days of the week, or on a trial basis.

*It is essential that any applicable dispute resolution procedure be followed in the event that a refusal leads to an employment dispute.

Position Descriptions

A proactive approach may be more effective in managing employee WFH requests by including a requirement to work at a particular location in the Position Description for roles which are identified as less suitable for WFH. Providing a statement that physical attendance at the workplace is an inherent requirement of the role places the employer in a far stronger position to make a decision in favour of the company when responding to WFH requests.

Working from Home Policy

The most sensible approach is to have an explicit workplace WFH policy that outlines what factors will be taken into consideration when WFH is requested.

Most disputes about WFH occur when changes are made to informal arrangements without proper consultation. Employees may feel as though they are having something unfairly taken from them. The absence of a consistently applied, detailed policy may lead to unhappy employees alleging their WFH privilege was removed for alternative reasons. In extreme examples, employers may face discrimination or adverse actions claims.

Therefore, if employers can put in place a formal process for managing these WFH requests with objectivity and reference to genuine business grounds then disputes are more likely to be avoided or resolved.

Our retainer clients have access to a template policy to assist with managing working from home requests. The template provides:

        (a)  the requirements for accessing WFH

        (b)  the obligations on employees while WFH;

        (c)   the employer’s right to terminate the WFH arrangement; and

        (d)  a questionnaire to determine an employee’s suitability for WFH. 

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